Stober v. Halsey

BARNARD, P. J. At the time of the accident the plaintiff was riding as a guest in a car owned by the defendant and being driven by one Johnson. The defendant was also riding in the car, and Johnson was driving at her request. There is evidence that Johnson was intoxicated at the time.

The facts are more fully stated on a prior appeal (Stober v. Halsey, 88 Cal.App.2d 660 [199 P.2d 318]). It was there held that an owner, who is also riding in a car, is liable for injuries sustained by a guest where the driver is guilty of wilful misconduct or intoxication, provided that a relation of master and servant, employer and-employee, or principal and agent exists at the time between the driver and the owner ; and that where an owner of a car permits another to drive it, and the owner is a passenger in the car being so driven, an inference arises that the operator is driving the car for the benefit of the owner and as his agent. The judgment was reversed because it could not be told upon which of two theories the jury acted, and because “the question of the relationship or the existence of any agency between the owner and the driver was a material question for the jury to determine under proper instructions.”

On a retrial of the case, the evidence being the same, the court gave four instructions relating to this matter of agency. The first of these told the jury that if it found that the plaintiff did not assume the danger of the ride and was not guilty of contributory negligence, and that the relationship of principal and agent or of employer and employee existed between the driver and the defendant, and that the defendant was also a passenger in the car at the time of the accident, then the defendant is answerable for injuries sustained by the plaintiff if the driver was guilty of wilful misconduct or [803]intoxication. The second told the jury that the plaintiff claimed that Johnson was the agent or servant or employee of the defendant, and that if it should find that such an agency or relationship then existed it must hold the defendant liable if it further found that the driver was guilty of wilful misconduct or intoxication or both, unless the plaintiff is barred from relief by contributory negligence, if any, or the assumption of risk, if any. The third told the jury that if it should find from the evidence that at the time of the accident the ear then being driven by Johnson was owned by the defendant, and that Johnson was driving with the defendant’s permission, and that the defendant was present as a passenger in the car, it might infer from such evidence that Johnson was then acting as the agent or servant or employee of the defendant and within the scope of his authority. The instruction further told the jury that it was not compelled to draw that inference, and that it must weigh the inference and such evidence as favors it against all contrary evidence, and then determine which, if either, preponderates. The fourth instruction, which was offered by the defendant, defined agency in the language of section 2295 of the Civil Code.