Vaden v. Holmes

STURTEVANT, J. On the evening of September 23,1938, Curtis Farrell was driving a Packard sedan automobile northerly along San Leandro Way in San Francisco. The plaintiff, as his guest, sat by his side. On her right Miss Walker, another guest, was seated. At a point where San Leandro Way intersects Portola Drive the Packard car collided with a Ford coupe. The latter ear was owned by the Holmes Express, a corporation, and was being driven by Perry Holmes an agent of said corporation. The plaintiff commenced an action against Perry Holmes and the corporation to recover damages for her alleged injuries. The action was tried before the trial court sitting without a jury. The defendants admitted that Perry Holmes was negligent in driving the Ford coupe. The other issues made by the pleadings were tried.' The court made findings in favor of Holmes Express but against Perry Holmes and in favor of the plaintiff. In those findings the court fixed the damages of the plaintiff in the sum of $150. From the judgment the plaintiff has appealed.

In her first point the plaintiff contends that the trial court erred in making a finding in favor of Holmes Express, a corporation. That finding was as follows: “At the time and place of said collision the defendant Perry Holmes was operating a Ford automobile on his own personal concerns and not as agent, servant, or employee of the defendant, Holmes Express, a corporation, and not in the business of said corporation. ’ ’ The only evidence on the subject contained in said finding was the testimony of Perry Holmes who was [582]called as a witness by the plaintiff under the provisions of section 2055 of the Code of Civil Procedure. The uncontradicted evidence given by that witness was that after 6 o’clock and after the defendant’s business had been done he took the car and started to go to his aunt’s to have dinner. He further testified that he had no business of the corporation to transact on his trip and that he did not on said trip attempt to transact any business whatever for the corporation. Under these circumstances it is apparent that the trial court’s finding was in direct response to the evidence. In this connection the plaintiff asks this court to hold that Holmes Express was but the corporate double of Perry Holmes. It is sufficient to state that in the record there were no facts whatever that would justify the application of that doctrine.

In her next point the plaintiff contends that on the issue of the amount of damages the judgment is against the evidence and against law. She attacks a finding which is as follows: “In said collision, and the result thereof, the plaintiff did not sustain any injury, save and except a slight laceration or abrasion of the skin of her right knee and she was slightly shaken up. ’ ’ She contends her evidence showed (1) injuries to her right knee; (2) injuries to her head; and (3) injuries to her abdominal cavity. Before proceeding it should be noted the only witness called by the plaintiff to testify regarding her injuries was the plaintiff. The defendants called no witnesses. The plaintiff testified the accident happened about 6:20 P. M. on September 23, 1938, that is, on a Friday afternoon. Immediately thereafter she was taken to Alemany Emergency Hospital and was there examined by Dr. 0 'Hara. He found no surface injury on any part of her body except her knee. He applied some alcoholic wash to the spot, placed some gauze over it, and fastened the gauze with tapes. Later he directed the plaintiff to lie down on a bed. At about the same time Dr. Jones was summoned. He came to the hospital and there treated Miss Walker in particular, and also examined the plaintiff. Thereafter Miss Walker was taken to her hotel and the plaintiff went with her, under the directions of Dr. Jones, to wait on and attend her during the night. No other treatment of any kind was ever administered to the knee. There was no external injury to the plaintiff’s head and no treatment of any kind was ever administered to her head. She testified that