Opinion
Rehearing Granted June 7, 1933.
Appeals from Superior Court, Los Angeles County; Warren V. Tryon, Judge.
Actions by William Richard Irwin, by Annie A. Irwin, by Florence B. Irwin, a minor, by Annie A. Irwin, her guardian ad litem, and by Betty B. Irwin, a minor, by Annie A. Irwin, her guardian ad litem, against the Pickwick Stages System, Inc., and another. From the judgments, defendants appeal.
Affirmed.
See, also, 115 Cal.App. 372, 766, 1 P.2d 1030; 115 Cal.App. 767, 768, 1 P.2d 1031. COUNSEL
B. P. Gibbs and George P. Kinkle, both of Los Angeles, for appellants.
George Appell and Earl Newmire, both of Los Angeles, for respondents.
OPINION
CRAIG, Justice.
These are actions to recover damages for personal injuries claimed to have been suffered by the several plaintiffs through alleged negligence of Pickwick Stages System, a corporation, and R.I. Bailey, who was the driver of the stage known as "St. Charles" in which the plaintiffs were riding at the time of the accident. This took place November 23, 1929, in San Bernardino county, Cal., near a point called Baker. It appears that the plaintiffs were regular and paid passengers of the stage. The stage was being driven over a straight highway which was on a practically level grade, and that as it was coming up out of a slight dip in the road it veered abruptly to the left and went off the highway and turned over. The plaintiffs sustained severe injuries. The answers in effect deny ownership or operation of the stage.
The principal issues involve the sufficiency of the evidence of ownership of the bus by the defendant corporation, and employment by it of defendant Bailey. These matters were first presented on motion for nonsuit; then by motion for a directed verdict for the defendant corporation, and later on motion for new trial and the appeal from the judgments.
At the time of the motion for nonsuit, plaintiff had placed in evidence proof that at the time of the accident the stage bus St. Charles was registered with the motor vehicle department of the state of California in the name of Pickwick Stages System as its legal owner. When the injuries to plaintiffs were sustained, it was established and stipulated that the plaintiffs were then passengers on said stage. We think this was a sufficient showing to constitute prima facie proof of the defendant corporation’s ownership of the bus and that the driver, Bailey, was then employed by it, and acting within the scope of his employment. Hence the motion for nonsuit was properly denied.
We proceed to consider the more difficult question as to whether these inferences were sufficiently overcome by evidence introduced after plaintiffs’ case had been rested.
It is conceded by the appellant that "this evidence on behalf of respondents created an inference that the driver of the bus, appellant R.I. Bailey, was acting as an agent and servant of the appellant Pickwick Stages System, Inc.," but with striking inconsistency it is declared in appellants’ brief "that there was a total failure of proof that the appellant R.I. Bailey, driver of the bus involved in this case, at the time of the accident, was an agent, servant or employee of the appellant, Pickwick Stages System." If the first statement quoted is true, the second cannot be. It is conceded in many authorities cited by both the respondents and appellants that the inference above admitted to exist would amount to proof sufficient to be a prima facie showing on the point in question. Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198; Judson v. Bee Hive Auto Service Co., 136 Or. 1, 294 P. 588, 297 P. 1050, 74 A. L. R. 944, and cases there cited.
The injuries were sustained on the 23d day of November, 1929. Plaintiffs’ Exhibit I, which is a certificate of registration with the motor vehicle department of the state of California, indicates that the Pickwick Stages System was the legal owner of the stage St. Charles beginning with the 22d day of August, 1929, and that it was registered to that corporation for the year 1929. In many cases cited by the appellants, where a prima facie case was made out by the plaintiff as was done here, the defendant produced evidence conclusively showing that, notwithstanding the apparent ownership of the defendant, and in spite of the initial showing that the person whose negligence caused the injury was the employee of the defendant and acting within the scope of his employment, one or both of these essentials in truth did not exist when the accident occurred. Among such cases are Maupin v. Solomon, supra; Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 179 P. 697; Rock v. Orlando, 100 Cal.App. 498, 280 P. 377; Preo v. Roed, 99 Cal.App. 372, 278 P. 928; Fahey v. Madden, 56 Cal.App. 593, 206 P. 128; Burns v. Southern Pacific Co., 43 Cal.App. 667, 185 P. 875; Judson v. Bee Hive Auto Service Co., supra. However, in each of these decisions the evidence introduced by the defendant was uncontradicted and free from reasonable suspicion, was so clear and convincing as to dispel the inferences created by the plaintiffs’ prima facie showing, and to leave the state of evidence such that there was in law no conflict for the jury to weigh and no course for the trial court to pursue except to instruct the jury to render a verdict for the defendant. Such must be the type of evidence given by a defendant, otherwise an appellate court is bound by the familiar rule that, where there is a substantial conflict in the evidence, the decision of the trial court on a question of fact will not be disturbed.
The witness Libby was called by the defendant and testified that he was secretary and general counsel for the Pickwick Stages System; that he kept the corporation records, and of his own knowledge knew that at the time of the accident Pickwick Stages System did not operate a fleet of busses between Salt Lake City, Utah, and Los Angeles. Of course, the records of the corporation would have been the best evidence to establish this fact if it were true; but its weight was further affected by Plaintiffs’ Exhibit 21, which was introduced in connection with the cross-examination of the witness Libby. This exhibit is an application of the Pickwick Stages System to transfer a certificate of convenience and necessity theretofore granting the Pickwick Stages System to the Pacific Greyhound of California, Limited, and an order thereon permitting such transfer. From this exhibit it appears that such a certificate of convenience and necessity had been granted the defendant corporation before the date of such exhibit, to wit, in January, 1929; that it had been granted a franchise to operate busses over a route including where this accident occurred. The order permitting the transfer of this franchise is dated January 20, 1930, so that from this it seems that the Pickwick Stages System owned the franchise at the date of the plaintiffs’ injury. While this transaction is not full and complete proof that at the time of the accident the Pickwick Stages System still held the franchise referred to in this application and order and was operating stages in its exercise, it is clear that, if the Pickwick Stages System had transferred said franchise to the Pickwick Stage Lines, Inc., in whose employ the appellant contends the driver was, and which corporation it is claimed was the owner of the St. Charles stage at the time of the accident, such transfer of franchise would have been a violation of the order of the Railroad Commission, as appears from the following quotation from said order:
"3. The rights and privileges herein authorized may not be discontinued, sold, leased, transferred, nor assigned, unless the written consent of the railroad commission to such discontinuance, sale, lease, transfer, or assignment has first been secured."
"4. No vehicle may be operated by applicant herein unless such vehicle is owned by applicant, or is leased by them under a contract or agreement satisfactory to the railroad commission."
With the evidence in this state we have a record in which the showing is not comparable with that presented in numerous cases cited by appellant in which there was held to be presented for the defense clear, positive, and uncontradicted evidence, free from suspicion to disprove agency or present ownership, and that as against such proof the inference based upon former ownership was overcome and failed to create a substantial conflict in the evidence of a character sufficient to sustain a judgment for the plaintiff.
Throughout the decisions we find this to be the test: Was the proof against the inference in question uncontradicted, was it clear, positive and decisive? and, further, was it free from suspicion? And this is logically so, otherwise the law would stultify itself by compelling presumed belief on testimony which the minds of jury or judge could not reasonably accept and believe. It is elementary that courts are not forced to accept as true a statement of a witness merely because it is uncontradicted. It may be highly improbable and yet incapable of contradiction. If the evidence submitted permits of suspicion as to its verity, if it is apparent that better, and more conclusive, evidence might have been offered, evidence which it was apparently within the power of the party relying upon weaker and less satisfactory evidence to produce, thoughtful and reasonable minds have a right to suspect that, had the best evidence been offered, it would not have sustained the inferior proof. The best evidence would have been clear and conclusive. Such was the case of Judson v. Bee Hive Auto Service Co., supra, principally stressed by appellants where the original written contract sustaining defendants’ contention was before the jury. In each of the cited cases such direct, final, and best proof was in evidence. In these instances there was no room for the application of the wise presumption made a part of our law of evidence by subdivision 7 of section 2061, Code of Civil Procedure: "That if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust."
We think the evidence given to overcome the inferences arising from the certificate of registration and the franchise from the Railroad Commission was not above suspicion nor of that complete and final nature requiring or justifying a directed verdict in favor of the defendant. Again, regardless of who paid the driver his wages and of who was his immediate employer (and there was evidence that Pickwick Stage Lines, Inc., of Nevada, paid him and that the Pickwick Stages System was not his immediate employer), since the jury had the right to believe that at the time of the injury to plaintiffs the defendant corporation owned the bus St. Charles and the franchise by virtue of which it was being operated, the law created the driver its agent. Lee v. Southern P. R. R. Co., 116 Cal. 97, 100, 47 P. 932; Johnson v. Southern P. R. R. Co., 154 Cal. 285, 97 P. 520, 524; Const art. 12, § 10.
If some other person or corporation was lawfully operating the defendant corporation’s stage or using its franchise in such manner as to relieve it from liability for their negligence, it was incumbent on it to place before the court a frank, open, complete picture of its transactions in that behalf if it would make its case so far above suspicion as to require a directed verdict. As was said in Johnson v. Southern Pacific R. R. Co., supra: "It can only relieve itself from responsibility for injuries resulting from such operating by showing a lease made to the operating company under statutory authority." This it did not choose to do.
It is contended that an instruction given by the court upon the doctrine of res ipsa loquitur was erroneous, in that it indicated that, if the plaintiff had made a prima facie case as to injury, ownership of the conveyance, and agency, the burden of proof was thrown on defendants to show that such injuries were sustained without the negligence of the defendants or by unavoidable or inevitable accident. In other instructions given the jury, the jury were fully informed as to the necessity that the plaintiff prove all material and affirmative allegations of the complaint by a preponderance of the evidence. It is not necessary that each instruction contain all of the law bearing on a particular phase of the case. In this instance no prejudicial error occurred. Bonneau v. North Shore Railroad Co., 152 Cal. 406, 409, 93 P. 106, 125 Am. St. Rep. 68. As to the other instructions criticized by appellant, in view of our holding heretofore stated on the law governing the particular facts shown in this record, we think no error is shown.
The judgments are affirmed.
We concur: WORKS, P. J.; STEPHENS, J.