Opinion
Rehearing Granted April 30, 1931.
Appeal from Superior Court, Los Angeles County; Daniel Beecher, Judge.
Action by Anna M. Rapp and another against the Southern Service Company. Judgment for defendant, and plaintiffs appeal.
Reversed.
MARKS, J., dissenting.
COUNSEL
James B. Ogg, of Alhambra, and J.B. Joujon-Roche, of Los Angeles, for appellants.
Joe Crider, Jr., Elber H. Tilson, and Lee Solomon, all of Los Angeles, for respondent.
OPINION
JENNINGS, J.
This is an action instituted by the widow and minor child of Leo A. Rapp, deceased, to recover damages resulting from his death. The trial court on motion of defendant directed the jury to return a verdict in favor of defendant for the reason that the court was of the opinion that the evidence showed that the decedent was guilty of contributory negligence which proximately contributed to the injuries described in plaintiffs’ complaint. The jury thereupon returned its verdict in favor of defendant, and judgment was entered thereon. Plaintiffs have appealed. The question presented on this appeal, therefore, is whether the trial court erred in directing a verdict in defendant’s favor.
The decedent suffered injuries resulting in his death in a collision between himself and an automobile operated by Fred E. Whyte, general manager of the defendant corporation. The accident occurred on the evening of December 9, 1927, at the intersection of Almansor street and Valley boulevard in the city of Alhambra. At about 10 p.m. of that day the deceased alighted from a bus which had stopped at the southeast corner of the intersection of Almansor street and Valley boulevard and started to cross Valley boulevard. A drizzling rain was falling at the time. As the deceased pursued his course across the boulevard, he passed directly in front of an automobile approaching him from the west, at which time he turned his head in the direction of this automobile. He then turned his head in the direction in which he was walking, and, without again looking up, continued on his way across the boulevard. The deceased had arrived at a point a few feet south and east of the center point of the intersection of the two streets when the collision between himself and the automobile operated by Fred E. Whyte occurred. This latter automobile was then proceeding in an easterly direction on Valley boulevard at a speed of approximately 20 miles per hour. When the deceased was approximately 50 feet ahead of this automobile, he was observed by one of its occupants. At that time the deceased was crossing Valley boulevard at an ordinary pace with his head down.
In view of the foregoing facts, which were established by the testimony of the two living witnesses who were present at the scene of the accident and observed the conduct of deceased immediately prior to the collision, it is urged that the action of the trial court in directing the jury to return a verdict in favor of respondent on the ground that deceased was guilty of contributory negligence as a matter of law constituted error.
It is settled in California that the right of a court to direct a verdict is, with regard to the condition of the evidence, absolutely the same as the right of a court to grant a nonsuit; and also that a court may grant a nonsuit when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given. Perera v. Panama-Pacific International Exposition Co., 179 Cal. 63, 175 P. 454; Estate of Caspar, 172 Cal. 147, 155 P. 631.
It is equally well established that "contributory negligence ‘is a question of law only when the evidence is of such a character that it will support no other legitimate inference than that in the one case the plaintiff was guilty of contributory negligence. *** When the evidence is such that the court is impelled to say that it is not in conflict on the facts, and that from those facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to his own injury, then, and only then, does the law step in and forbid plaintiff a recovery. *** Even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question of negligence, the question is one of fact for the jury.’ Zibbell v. Southern P. Co., 160 Cal. 237, 240, 116 P. 513; Wing v. Western P. Co., 41 Cal.App. 251, 182 P. 969. And the question of contributory negligence must be determined without regard to any negligence on the part of defendant. Hutson v. Southern Cal. Ry. Co., 150 Cal. 701, 703, 89 P. 1093." Moss v. H.R. Boynton Co., 44 Cal.App. 474, 476, 186 P. 631, 632. See, also, White v. Davis et al., 103 Cal.App. 531, 538, 284 P. 1086, 1091.
Since we are here dealing with the reciprocal rights and duties of a pedestrian and the operator of an automobile on a public street, decisions of our courts in cases of this character are illuminating. In White v. Davis, supra, the contention that the plaintiff, a pedestrian who had been struck and injured by an automobile truck, was guilty of contributory negligence, as a matter of law, was one of the subjects under consideration by the court. In its decision, the court uses the following pertinent language: "The question as to whether a given state of facts constitutes contributory negligence, as a matter of law, or whether it is a matter that should go to the jury, as a question of fact, is often a close one. The solution depends entirely upon the existing circumstances in each particular case. Unusual circumstances may determine in a given case whether or not reasonable minds might legitimately draw different conclusions on the question of negligence. There seems to be a general rule running through the cases where a pedestrian, or one standing on a highway, is injured by an automobile, which usually determines whether the question of contributory negligence is one of law, or of fact. Where the injured party fails to look at all, or looks straight ahead without glancing to either side, or is in a position where he cannot see, or, in other words, where he takes no precaution at all for his own safety, it is usually a question for the court. Where he looks but does not see an approaching automobile, or, seeing one, erroneously misjudges its speed or distance, or for some other reason assumes he could avoid injury to himself, the question is usually one for the jury."
While it is obvious that the question as to whether the deceased under the state of facts herein appearing was guilty of contributory negligence as a matter of law is a close one, it would appear that, under the more recent decisions of our courts, the question must be deemed to have been one of fact, and that it should have been submitted to the jury for their determination. The evidence presented at the trial shows that the deceased, as he walked out in the street in front of the automobile operated by Dr. Riddell, turned his head towards the Riddell automobile and looked in the direction from which the automobile operated by Fred E. Whyte was approaching. Whether deceased did not see the approaching vehicle, or having seen it misjudged its speed or the distance that intervened between it and him, cannot, of course, be discovered. The fact remains that deceased did take some precaution. He did at least look up and in the direction from which danger was to be expected. This action on his part would appear to be sufficient to relieve him of the disability of contributory negligence as a matter of law, and appellants were entitled to have the question submitted to the jury as a matter of fact.
It is urged that the trial court, in directing a verdict for respondent, did not necessarily limit its action in so doing to the single ground that deceased was guilty of contributory negligence as a matter of law. The language employed by the court in directing a verdict for respondent is as follows: "Ladies and gentlemen, the Court finds that in this case, from the evidence, that the decedent Leo A. Rapp, was guilty of contributory negligence at the time and place of the accident which proximate contributed to the injuries complained of. Therefore, it instructs the jury to return a verdict for the defendant."
It is clear that the court in its direction of a verdict did confine itself to the single ground of contributory negligence. The language is plain and unequivocal. That such was the court’s intention is made doubly clear by the following dialogue between the court and counsel for appellants during the argument of respondent’s motion for a directed verdict:
"The Court: It seems to me that the evidence in this case shows that the decedent did not exercise any care at all. I cannot see it any other way. I was very doubtful on the other motion.
"Mr. Ogg: I think that under the authorities, your Honor, he exercised all the care that the law required and that, in any regard, is a question for the jury— to say whether or not he was guilty of contributory negligence. That is a question for the jury under the instructions of this court. There is not sufficient evidence to find a man guilty of contributory negligence as a matter of law because the evidence is that he looked to the west, the source from which danger would be expected.
"The Court: The only testimony about his looking is that he looked toward this car and then looked down.
"Mr. Ogg: Well, if the court please, Dr. Riddell testified he looked towards his car and he was going to draw a conclusion to the effect that he figured he had plenty of time to pass it.
"The Court: I am going to grant the defendant’s motion. Call the jury."
Nevertheless, it is the action of the court in directing the verdict rather than the court’s reason for taking the action that is the subject of review on appeal. It is the judgment in favor of respondent based on the verdict directed by the court which is the subject of this appeal, and, if the judgment is right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. 2 Cal.Jur. p. 809. In Davey v. Southern Pacific Co., 116 Cal. 325, 329, 48 P. 117, the court says: "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." See, also, Estate of Kingsley, 93 Cal. 576, 29 P. 244; Unger v. San Francisco-Oakland Rys., 61 Cal.App. 125, 137, 214 P. 510; People v. Bailey, 30 Cal.App. 581, 590, 158 P. 1036.
If, therefore, the action of the trial court in directing a verdict for respondent is capable of being sustained on another ground than that relied upon by the court, the judgment should be affirmed. It is urged that such other ground exists in the alleged failure of proof by appellants that Fred E. Whyte, who operated the automobile which collided with the deceased was, at the time of the accident, acting within the scope of his employment. It is elementary that, in order to fasten upon the master liability for damages occasioned by a tortious act of the servant, there must be proof that at the time the tort was committed the servant was engaged on the master’s business.
In this connection it must be conceded that the evidence respecting the feature of whether or not Fred E. Whyte was at the time of the accident engaged on business of the respondent is meager. It was shown that on the night of the accident Mr. Whyte, who was admitted to be the general manager of respondent, had attended a meeting called for the purpose of presenting for discussion by fire chiefs and representatives of dry cleaning establishments a law relating to the operation of dry cleaning establishments which had been enacted by the preceding Legislature; that thirty or forty persons engaged in the business of dry cleaning from various cities in Southern California were in attendance; that respondent was engaged in the dry cleaning business; that the collision with deceased occurred when Fred E. Whyte and his guest, the witness Presnell, both of whom resided in Pomona, were en route to the latter city after the close of the meeting referred to; that, after the accident had occurred and the injured man had been removed to a hospital, Fred E. Whyte stated that he would be responsible for expenses to be incurred in caring for the injured man, that he was on company business, and that he was insured. Objection was made by respondent to the introduction in evidence of the declaration by Fred E. Whyte that he was on company business at the time of the accident, and respondent now urges that the trial court erred in admitting the declaration. Respondent may not, however, complain of errors in admission of evidence. 2 Cal.Jur. 839; Coyle v. Lamb, 123 Cal. 264, 55 P. 901; Estate of Olmsted, 122 Cal. 224, 228, 54 P. 745; Benson v. Bunting, 141 Cal. 462, 466, 75 P. 59.
We have, then, two evidentiary factors bearing on the problem of whether the general manager of respondent was acting within the scope of his employment at the time the collision with deceased occurred. The first of these is the nature of the meeting which he had that evening attended and from which he was returning to his home. The second is his declaration that he was at the time of the accident on company business. The very nature of the meeting, bearing in mind that respondent was engaged in the dry cleaning business, might not, standing alone, be sufficient to raise an inference that the general manager of respondent was acting within the scope of his employment in attending the meeting, but when in addition to this fact we have his declaration that he was on company business at the time, it would appear difficult to maintain that there is no evidence supporting the necessary requirement of showing that respondent’s agent was acting within the scope of his employment at the time of the accident. As meager as the evidence was, we are of the opinion that it was sufficient to warrant the trial court to submit the determination of the question to the jury and we are therefore of the opinion that the action of the court in directing a verdict for respondent may not be upheld on the ground suggested.
For the reasons herein given, the judgment is reversed.
I concur:
BARNARD, P.J.
MARKS, J.
I dissent.
While I agree with my associates in concluding that the evidence fails to establish contributory negligence as a matter of law on the part of Leo A. Rapp, I can find no sufficient evidence in the record which, in my opinion, supports the conclusion that Fred E. Whyte was either on the business of respondent or acting within the scope of his employment at the time of the unfortunate accident which resulted in the death of Leo A. Rapp at about 10 o’clock on the evening of December 9, 1927.
Evidence in the record upon which appellant must rely to establish that Whyte was acting within the scope of his employment and was upon the business of his employer at the time of the accident is found in the testimony of the witnesses William H. Presnell and Dr. O.J. Riddell, together with admissions in the pleadings that Whyte was a general manager of respondent, that he lived in the city of Pomona, and that respondent, among other things, was engaged in the business of dry cleaning.
Mr. Presnell testified that on the evening of December 9, 1927, in the company of Mr. Whyte, he attended a meeting at a caféin the city of Los Angeles at which an address was delivered by the fire marshal of the state of California; its subject being the operation of a new law in California affecting the business of dry cleaners. At the meeting were present a number of representatives of municipal fire departments of southern California, as well as a number of people engaged in the dry cleaning business.
The meeting occurred after the usual closing hours of business. The only attempt of appellant to introduce any evidence that Whyte was on the business of his employer in attending this meeting occurred during the examination of the president of the respondent company by appellants’ attorney. In reply to a question asked as to whether or not Whyte attended this meeting for or upon the business of respondent, he replied that he did not know.
The duties of a general manager of a corporation are fairly well understood. It is said in 6 California Jurisprudence, at page 1111: "As a general rule, the power of the manager of a corporation, unless special authority is given him, is limited to the performance of such acts as are within the usual course of the business of the corporation. Where an act is outside the usual course of business and beyond the powers ordinarily reposed in managers of such corporations, evidence of special authority is necessary."
I believe that the mere fact that Whyte was the general manager of respondent and attended a meeting at which an address was delivered upon a subject in which the respondent might have been interested, coupled with the fact that the meeting was held at night, is not sufficient to meet the burden of proof placed upon appellants which require them to establish by some competent evidence that Whyte was acting within the scope of his employment and was upon the business of his employer in attending the meeting. It is a well-known fact that many employees attend lectures upon subjects connected with the business of their employers for their own edification and instruction when not required to do so by their employers or by the duties imposed upon them by their employment. I think that it would be an unjustified and unnecessary assumption to have to conclude from this meager evidence that Whyte was required to attend this meeting for his employer and that it was within the scope of his employment, rather than that he attended it for his own edification and enjoyment. This conclusion makes the fact that Whyte was returning to his home in Pomona at the time of the accident unimportant, for, unless he attended the meeting upon his employer’s business and within the scope of his employment the fact that he was returning to his home after such a meeting adds no weight to appellants’ case.
The only other evidence in the record which could be of any possible assistance to appellants is found in the testimony of Dr. Riddell concerning a conversation which he had with Mr. Whyte at a hospital to which Leo A. Rapp was taken shortly after the accident. Over the strenuous objection of respondent, Dr. Riddell was permitted to testify as follows: "He (Mr. Whyte) said: ‘Do everything you can to save this man’s life. Get a special nurse right now and we had better get another doctor.’ *** I asked Mr. Whyte who would be responsible for this. I did not want to call any nurse or doctors when the patient might be shipped to the County Hospital which is our custom when there is no one to take care of them. At that time he made a statement that he would be, that he was on company business, and that he was insured."
There is no evidence in the record that the automobile which was driven by Whyte at the time of the accident belonged to respondent.
In my opinion, it is upon this statement of Whyte to Dr. Riddell and this alone that appellants’ case must stand or fall. This statement contained three separate declarations: First, that he (Whyte), and not the Southern Service Company, would be responsible for the bills incurred in the care and treatment of Mr. Rapp; second, that he (Whyte), and not the Southern Service Company, was insured. Sandwiched between these two statements is the third, "that he (Whyte) was on company business." At no place in the record in connection with this declaration does the name of the Southern Service Company appear. It merely appears that Whyte was the general manager and director of and a stockholder in the Southern Service Company. It would be necessary for me to read and interpolate into this statement the added statement that "the company" mentioned by Whyte therein was the Southern Service Company to give it the meaning and importance assigned to it by the other members of this court. Standing by itself the declaration as made should not be construed to refer to respondent.
It is my conclusion that the evidence wholly fails to disclose that appellants met the burden, placed upon them by law, of proving by any competent evidence that at the time of the accident Whyte was upon the business of his employer and acting within the scope of his employment. Therefore, in my opinion, the judgment of the trial court should be affirmed.