Opinion
Hearing Granted March 30, 1944.
Appeal from Superior Court, Los Angeles County; Georgia P. Bullock, Judge.
Action by Floyd B. Gardner, Jr., against William H. Marshall and another for injuries sustained in an automobile collision. From an adverse judgment, defendant the American Brake Shoe & Foundry Company appeals.
Judgment reversed and cause remanded for new trial. COUNSEL
Betts & Garrison, of Los Angeles, for appellant.
Paul Blackwood and Samuel P. Young, both of Los Angeles, for respondent.
OPINION
DRAPEAU, Justice pro tem.
This is the second appeal in this case. The first was decided December 11, 1942. 56 Cal.App.2d 62, 132 P.2d 833. In that decision a judgment notwithstanding the verdict as to one defendant was reversed, and an order granting a new trial as to the other defendant was affirmed.
Such facts as are necessary to an understanding of this appeal follow: After a trial by jury a verdict of $15,000 was awarded plaintiff against both defendants. One of the defendants drove his automobile out of his right-hand lane of traffic into the left-hand lane and ran over the plaintiff, who was at the time riding a scooter where he had a right to be. The trial court granted a motion for judgment notwithstanding the verdict as to the other defendant upon the ground that there was no evidence by which that defendant could be held liable as the employer of the defendant who actually caused the accident. A motion for a new trial was granted as to the defendant driver and owner of the automobile.
Upon coming down of the remittitur, the trial court entered judgment in the amount of the jury’s verdict in favor of the plaintiff and against the defendant employer. This defendant then moved for a new trial. The trial court failed to rule upon this motion, which was denied by operation of law. Sec. 660, Code of Civil Proc. The action as to the defendant driver was dismissed by the plaintiff on the same day that the motion for a new trial by the employer defendant was filed.
In support of the appeal from the judgment against defendant employer two propositions are urged:
First, the judgment against the employer defendant was solely and entirely because of negligence of the driver defendant. The defendants were not joint tort-feasors; if the employer defendant was liable at all, that liability was based upon the legal rule of respondeat superior. Therefore, a new trial having been granted as to the employee, no judgment may be enforced against the employer defendant.
Secondly, there was an abuse of discretion on the part of the trial court in failing to act favorably upon appellant’s motion for a new trial.
In Bishop v. Superior Court, 59 Cal.App. 46, 209 P. 1012, it was held that an order granting a new trial as to an agent vacated a judgment as to his principal. The cause of action in that case alleged fraud, based on false representations of the agent and not his principal. And in that case the comment is made that the reason for the rule is that the liability of the principal is dependent upon that of the agent.
In Hoffmann v. Lane, 11 Cal.App.2d 655, 661, 54 P.2d 477, 479, the rule involved is stated: "The granting of a new trial as to one of several independent tort-feasors, found jointly liable for negligence, does not vacate the judgment against the remainder. Fowden v. Pacific Coast Steamship Co., 149 Cal. 151, 86 P. 178. But if the rights and liabilities of the codefendants are interdependent or those of one are entirely dependent on the other, the judgment should be treated as an entirety, and, if vacated as to the one upon whom the other’s rights depend, also as to the latter. Bishop v. Superior Court, 59 Cal.App. 46, 209 P. 1012; Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548; Stotler v. Chicago & A. Ry. Co., 200 Mo. 107, 98 S.W. 509. The defendant Lane could not be held liable as owner of the auto truck upon either of the three theories advanced by the plaintiff until the negligence of the defendant Brasesco as the proximate cause of plaintiff’s injuries had been established. The order granting a new trial as to defendant Brasesco did not limit the issues to be retried, and therefore the question of his negligence was left undetermined. Hence the defendant Lane was entitled to participate in the redetermination of that issue."
In this case the liability of the defendant employer depends upon the relationship of master and servant and the consequent liability imposes upon the master based upon the legal principle of respondeat superior. Upon this issue the trial record discloses a question of fact the determination of which might go either way, depending upon the admissibility, and the weight, value and effect given to the testimony relevant to the issue by the trier of fact.
Cases in which both employer and employee are joint tort-feasors are not here applicable. Benson v. Southern Pacific Co., 177 Cal. 777, 171 P. 948.
Where the master’s liability is solely on the ground of respondeat superior, the servant is the actual wrongdoer, his liability is primary, and the master is entitled to indemnity from the servant in case a judgment be rendered against the master. Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875, 129 Am.St.Rep. 171. When both master and servant are parties defendant, and a jury finds a verdict against the master and in favor of the servant the judgment must be reversed, because it otherwise would cause the master to lose his right of indemnity. Thompson v. Southern Pacific Company, 31 Cal.App. 567, 161 P. 21; Fimple v. Southern Pacific Co., 38 Cal.App. 727, 177 P. 871; Zulim v. Van Ness, 3 Cal.App.2d 82, 38 P.2d 820.
After the motion for new trial of the defendant driver was granted (and affirmed on appeal), the plaintiff dismissed his action as against that defendant. In Jalof v. Robbins, 19 Cal.2d 233, 120 P.2d 19, our Supreme Court refers to and approves the long-established California rule that a litigant may dismiss his action against any defendant at any time before submission thereof. Sec. 581(1) of the Code of Civ.Proc. At common law when a plaintiff renounced his cause of action and a judgment was entered in favor of the defendant, a retraxit occurred and the plaintiff’s cause of action was forever barred. Westbay v. Gray, 116 Cal. 660, 48 P. 800. But under modern practice, it would seem more reasonable to assume that the plaintiff having the right to proceed either against the defendant driver or the defendant employer may dismiss as to one without suffering the penalty of losing his entire cause of action.
Interesting as the latter question may be, it is not necessary to rule upon it because a new trial is required to protect a substantial right of appellant. Bishop v. Superior Court, supra; Hoffmann v. Lane, supra. Moreover, when the trial court granted a motion notwithstanding the verdict as to the employer defendant, then granted a motion for a new trial as to the driver defendant, and then denied a motion for a new trial as to the employer defendant, it is obvious that a reviewing court should make some inquiry to determine if there was an abuse of discretion in making any such conflicting orders. From such inquiry we hold that the latter order should be set aside.
The judgment is reversed and the cause remanded for a new trial.
YORK, P. J., concurs.
DORAN, Justice (concurring).
I concur. It is now my conviction that the decision as a result of the former appeal (56 Cal.App.2d 62, 132 P.2d 833, 835) was erroneous. The decisive question on appeal was whether evidence of the declarations of the employee of defendant, who was involved in the accident which caused plaintiff’s injuries, was hearsay. The pertinent part of the opinion reads: "Thus we come to a determination whether the declarations against interest were hearsay and therefore not admissible in evidence. If they were hearsay, then the judgment notwithstanding the verdict was proper; if they were admissible, then there was such a conflict of evidence that the verdict of the jury must stand. Again we come to another well-settled rule of law in California." Then follows a quotation of the rule recited in section 139, at page 865 of 1 California Jurisprudence. In addition to the above cited authority the court declares that: "In Tsirlis v. Standard Oil Co., 32 Cal.App.2d 469, at page 475, 90 P.2d 128, the rule above set forth is quoted with approval, and supporting cases are cited." In the Tsirlis case, supra, appears the following (at page 475 of 32 Cal.App.2d, at page 131 of 90 P.2d): "The rule is stated in 1 California Jurisprudence, 865, section 139, as follows: ‘It is a rule of long standing in California that the declarations of an agent are not admissible to prove the fact of his agency, nor the extent of his authority. They are admissible, however, to prove that his acts were done on behalf of his principal and not in his individual capacity * * *.’ See also, Swinnerton v. Argonaut L. & D. Co., 112 Cal. 375, 44 P. 719; Smith v. Firestone Tire & Rubber Co., 119 Conn. 483, 177 A. 524; 2 Am.Jur. 352, sec. 445; Restatement of the Law of Agency, sec. 289; 2 Mechem on Agency, 2d ed. p. 1367, sec. 1790."
Thus it will be seen that Gardner v. Marshall, supra, relies on California Jurisprudence and the Tsirlis case, supra, and the Tsirlis case relies on California Jurisprudence and the citations noted.
The unqualified statement in California Jurisprudence, viz.: That the declarations of an agent are admissible to prove "that his acts were done on behalf of his principal and not in his individual capacity", is not the law; nor do the cases cited in support thereof sustain the text. The following are the cases cited. Ferris v. Baker, 127 Cal. 520, 59 P. 937; Swinnerton v. Argonaut Land & Dev. Co., 112 Cal. 375, 44 P. 719.
With regard to the authorities cited in the Tsirlis case, supra, that purport to support the same rule quoted from California Jurisprudence, an examination thereof reveals that they not only do not support such a rule but show the rule to be to the contrary. In Restatement of the Law of Agency, section 289, appears the following: "Evidence of statements of agents, whether or not such statements are authorized, is admissible in favor of and against the principal, if admissible under the general rules of evidence as to the admissibility of such statements by persons not agents." "Evidence of statements by an agent introduced in order to show the purpose for which he did an act or to show his knowledge or state of mind is admissible in favor of and against the principal under the rules relating to the introduction of evidence for this purpose. Statements by an agent are not excluded because made by an agent. If his knowledge or condition of mind or purpose if relevant to the cause of action which is being brought, either party may introduce evidence relevant to show this." (Italics added.)
In Mechem on Agency may be found the following.
"Wherever the agent’s state of mind at a particular time is material--where the question of his good faith, his alertness, his sense of duty or responsibility, his attention to duty, his motive, his appreciation of danger, and the like, is involved--his statements, admissions or declarations made at the time and indicating what his state of mind then was in reference to such matters, would be admissible in evidence either for or against his principal wherever the principal would be affected by the agent’s state of mind, and it would be a proper subject of inquiry. This is not upon any ground of agency, of course, but upon the ordinary rules of evidence.
"Thus if the issue were an agent’s negligence, evidence of his declarations at the time tending to show that his thoughts and attention were upon something else than his duty would be admissible; if the charge were his recklessness, declarations showing his indifference to consequences would be admissible; * * *" Section 1790, p. 1367.
But Mr. Mechem further points out (pp. 1368, 1369) that.
"The admissions of an agent, except in the cases already referred to, in which it can be said that he has been expressly or impliedly authorized to make them, are generally not competent to charge his principal. The agent may make admissions which will charge himself, and the principal may make admissions to bind himself, but usually one man can not admit things to charge another. An agent may confess his own negligence or default so far as his own liability is concerned, but he can not ordinarily be deemed authorized to confess his principal’s negligence or defaults. * * * ‘If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion.’
"The fact that it is the negligence of the agent which is sought to be proved against the principal does not make the agent’s admission of his own negligence competent against his principal. It is bad enough, in many cases, for the principal to be liable for the negligence of his agent, without also fastening his liability by the agent’s admission."
The distinction between evidence of the declarations of an agent and the testimony of an agent as a witness referred to by Mr. Mechem is a noteworthy reminder in connection with the subject here considered.
In American Jurisprudence, Vol. 2, p. 352 et seq., appears the following: "It frequently happens in cases where there is an issue of the fact of agency that it is necessary to determine whether the third party to the transaction in question dealt with the alleged agent as an agent or an individual principal. Generally such necessity arises on issues of agency by estoppel or ratification, or questions as to the rights and liabilities of undisclosed principals. On such issues the declarations of the alleged agent, asserting the fact that he is acting in the capacity of an agent, lose their character as hearsay, since the truth of the assertions is immaterial, the evidence being offered only to prove that the alleged agent purported to act in that capacity, or to show that the third party undertook to contract with a principal through the alleged agent." "Although an alleged agent’s extrajudicial statements are not admissible to prove the fact of his agency, that fact may, when it rests in parol, be established on the trial by the testimony of the agent himself; * * *"
The Tsirlis case, supra, was an action for personal injuries arising out of an automobile accident which occurred about five o’clock Sunday morning. It was sought to prove that the agent, Mr. Mahoney, who was killed in the accident, was acting in the course of his employment and agency. For that purpose evidence of Mr. Mahoney’s declarations to others upon his departure, and two hours before the accident occurred, were received in evidence. The court held that: "The foregoing declarations of Mr. Mahoney were not admitted for the purpose of proving the status of Mr. Mahoney as an employee of the defendant company or of proving Mr. Mahoney’s authority to drive the automobile but said declarations were admitted to show that the trip in question was taken by Mr. Mahoney in pursuance of his employer’s business rather than for purposes of his own." (Italics added) And the court cited California Jurisprudence, together with the other authorities hereinabove referred to in support thereof.
It is at once evident from an examination thereof, as above noted, that the authorities, with the exception of the quotation from California Jurisprudence, do not sustain the rule laid down in the Tsirlis case. Nor will such a rule stand the test of reason. Obviously, if evidence of the extrajudicial declarations of Mahoney are admissible to prove the trip in question was taken by Mahoney in pursuance of his employer’s business, then evidence of the extrajudicial statements of Mahoney’s employer to the contrary would be admissible. It is idle to argue that such evidence is not hearsay.
Finally, it should be emphasized that in practically all of the decisions above referred to, the disputes litigated resulted from some transaction of a contractual character, express or implied. In such cases the third party usually is the victim of a misunderstanding or misrepresentation through no fault of his own. In a tort action, however, the third party or plaintiff is a total stranger to both the agent and the principal. As between the plaintiff on the one hand and the agent and principal on the other, there are no equities. There is a fundamental distinction between the admission of extrajudicial declarations of an agent in cases of agency by estoppel and the admission of declarations of an agent in a tort case. The truth of the declaration of an agent made to a third party, inducing the third party to deal with the agent as such, is immaterial. The declaration is admitted only to prove the fact that such a statement was made. See quotation from American Jurisprudence, above noted. On the other hand, in the Tsirlis case, and in the present case, on the former appeal, supra, the truth or falsity of the declarations made is a material factor. Moreover, in the Tsirlis case and on the former appeal in the present case, the declarations involved were made at times and under circumstances so remote from the occurrence of the accidents in question as to preclude any possibility that such statements constituted a part of the res gestae.
Hearsay always has been a menace to the administration of justice. It is especially menacing when in disguise. To admit evidence of the extrajudicial declarations of an alleged agent to prove "that his acts were done on behalf of his principal" is to prove the ultimate fact of agency and that such acts were in the due course thereof, by hearsay evidence.
In my judgment the evidence of such declarations in the case of Gardner v. Marshall, supra, and Tsirlis v. Standard Oil Co., supra, was hearsay and its admission in evidence was error.