Willis v. San Bernardino Lumber & Box Co.

WORKS, P. J.

— This is an action for damages occasioned by the collision of an automobile with a motor-truck. The automobile was proceeding along the right side of a highway and was occupied by plaintiffs. The truck was standing at the same side of the thoroughfare, partially on and partially off the traveled portion of the road, and was faced in the direction in which the automobile was proceeding. The events out of which the litigation grows occurred in the evening, when the darkness of night was fully on. The truck was wholly without lights. As plaintiffs went toward the vehicle they did not see it, the circumstance being partially owing to the fact that the headlights of a car approaching from the opposite direction blinded them to every other object. Then occurred the collision out of which the action arises.

At the trial the action was dismissed as to the defendants Parsons J. Shropshire and Doig. The jury rendered a verdict against the defendants M. Y. Kellam, Jr., Mollie M. Shropshire, and E. R. Kellam. The two of these defendants who are first named were copartners doing business under the name of San Bernardino Lumber and Box Company. E. R. Kellam was the manager of the copartnership. An appeal is prosecuted by each of the defendants against whom the verdict was pronounced.

The first point made by appellants is that the evidence was insufficient to support the verdict. They contend that the defendant Doig was the owner of the truck and that he was an independent contractor in the performance of certain services for the copartners, in a part of which service the vehicle was engaged at the time when the collision occurred. There was evidence, undoubtedly, which supported this theory, but under the rules of law applying in a court of review when there is a conflict of evidence, we are to determine only whether there is a substantial showing made by the record upon which the jury justly might have reached a conclusion different from that for which appellants contend.

[754]

The record discloses testimony from which the jury properly might have found that the following were the facts: The copartnership was in constant need of trucks for the transport of the products of its operations, the general nature of which products sufficiently appears from the name under which the copartnership did business. Without dispute it also appears that the truck with which the car of plaintiffs collided was purchased by E. R. Kellam, the manager of the copartnership, that, as owner, he caused it to be registered in his name with the state authorities, and that it remained so registered at the time of the collision. The truck was bought on the installment plan and all payments upon it, including an initial payment of several hundred dollars, were made from the funds of the copartnership. There was undisputed testimony, however, that all these payments were charged to Doig on the books of the copartnership as an offset against amounts due to him from time to time for hauling. When the truck was first purchased it was operated by a son of defendant Doig, and pending this state of affairs that defendant left San Bernardino, in and about which city the copartnership conducted its operations, expecting to be absent therefrom for a period of two months. The collision between the car of respondents and the truck occurred before his return. Some time after his departure, and some time before the accident, defendant Doig’s son ceased to operate the truck, whereupon E. R. Kellam wrote Doig suggesting that a new driver be obtained. He said in the letter, “I am sure I can manage the truck without bothering you to come home.” Doig answered, in substance, that it was all right to put a man on the truck and put it to work. Soon after this the defendant Blodgett saw an advertisement in a newspaper, inserted by an employment agency, to the effect that a truck driver was wanted. He applied to the agency for the position and was sent to the office of the copartnership. He there first saw Mrs. Shropshire, one of the appellants, who was actively concerned in the business of the copartnership, and stated to her that he was an applicant for the position as truck driver. She turned him over to E. R. Kellam. The latter made inquiry as to Blodgett’s qualifications and engaged him. He told Blodgett he would pay him a certain amount per day for his services. Blodgett