Rosenberg v. Berry

SCHOTTKY, J. pro tem. Plaintiffs, heirs of Max Rosenberg, commenced an action for the wrongful death of the latter against defendants Berry and Howard. At the trial defendants stipulated that Max Rosenberg was injured and died as the result of the negligent operation of the automobile by defendant Berry, and that Berry was operating it with the permission of the owner, defendant Howard. The only issues left for determination were the amount of damages and whether the defendant Berry at the time of the accident was driving the automobile as an agent or employee of defendant Howard.

At the conclusion of the testimony defendant Howard moved the trial court to instruct the jury that the verdict against defendant owner could not (under Veh. Code, § 402) exceed $5,000, which motion was denied by the court. The jury returned a verdict against both defendants for $18,000, a motion for a new trial was denied, and both appellants have appealed from the judgment.

Only two grounds are urged by appellants: 1. There is no substantial evidence sufficient to support the implied finding of the jury that defendant Howard was liable for defendant Berry’s negligence under the doctrine of respondeat superior; and 2. The damages are excessive.

In view of the fact that the sufficiency of the evidence is the principal question involved, we shall first give a brief summary of the factual situation as disclosed by the record.

At the date of the accident, September 26, 1947, defendant John Howard was engaged in the used car business with a silent partner, Monroe McNaughton, under the name of Mid-Valencia Motors, 1236 Valencia Street, San Francisco. At that date and for about one year and five months prior thereto, Clarence Berry had been employed by Howard as a salesman. He testified that his duties also included cleaning and washing the cars, that his salary was $300 per month and that his working hours were from 8 :30 a. m. to 6:30 p. m. Berry did not own an automobile at the time, but testified that there was an understanding that he could take any car he wanted from the lot, and that he usually parked whatever ear he was using in front of his hotel all night.

[528]Sometime during the day of September 26, 1947, the date of the accident, a 1937 Oldsmobile 8 sedan arrived at the Mid-Valencia Motors, having been purchased by the silent partner, McNaughton. At about 6 :30 p. m. on that day, Berry left the lot driving the aforementioned Oldsmobile. He called for a friend, Miss Sanders, took her to dinner, and then drove out to the home of Charles Huber, who lived near Daly City. Huber was a used car dealer with whom, according to the testimony of both Berry and Howard, there had been a course of business dealings in regard to buying and selling of used automobiles and the exchange of business information by Howard personally as well as through his employee, Berry. Berry testified that the purpose of his call on this occasion was “social.” He left Miss Sanders sitting in the car in front of Huber’s house. According to Miss Sanders’ testimony, she had on prior and subsequent occasions gone to Huber’s house with Berry. Huber was not at home. Berry then drove to the home of defendant Howard. He testified that he had probably told Howard that he would drop in on Howard that evening, that it wasn’t definite. On recross-examination his deposition taken in February, 1948, was read to him in which he testified that he had told Howard that he would be by his house that evening. Howard was not home when Berry and Miss Sanders arrived. Mrs. Howard served them a cocktail, while they waited about an hour until Howard arrived at about 9 or 9 :30, according to Miss Sanders; 10 p. m. according to Berry. They remained at the Howard home until about 11:30 p. m. The accident occurred on Mission Street while Berry was enroute from the Howard residence to Miss Sanders’ home. Berry testified that after the accident that night he returned the car to Howard’s place of business, although he had originally intended to park it at his hotel. The reason given for changing his mind was that because he was upset and disgusted he decided to walk home.