Opinion
Rehearing Denied July 26, 1946.
Hearing Granted Aug. 26, 1946.
Appeal from Superior Court, Los Angeles County; Harold B. Jeffery, Judge.
Action by Ray W. Fields against Fred Sanders and members of the Krieger family, doing business as Krieger Oil Company, to recover damages for assault allegedly committed on plaintiff by defendant Fred Sanders. From a judgment for $3,000 against all the defendants, the members of the Krieger family, doing business as the Krieger Oil Company, appeal, and from judgment of $350 against defendant Sanders as exemplary damages, defendant Sanders appeals.
Judgment in accordance with opinion.
Sidney A. Moss, of Los Angeles, for appellants.
Shibley, Wanzer & Litwin, of Long Beach, for respondent.
OPINION
DESMOND, Presiding Judge.
Plaintiff, Ray W. Fields, was awarded a jury verdict in the sum of $3,000 against various members of the Krieger family doing business as Krieger Oil Company and an employee of the Krieger Oil Company named Fred Sanders. An additional verdict assessed the sum of $350 against Sanders as exemplary damages. The members of the Krieger Oil Company have appealed from the $3,000 judgment entered upon the first verdict and Sanders has appealed from the $350 judgment entered against him.
The suit resulted from an altercation between Fields and Sanders on September 19, 1944. At approximately 1:50 o’clock a. m. of that date Sanders drove a truck, with tank trailer attached, belonging to the Krieger Oil Company, from the refinery yard at Clearwater. He had been instructed to drive to Camp Kearney near San Diego with a load of oil and started on this mission by driving in a southerly direction on Lakewood Boulevard. This boulevard connects with Highway 101 near the easterly boundary of the city of Long Beach where a traffic circle is located. At the same time that Sanders was driving south on Lakewood Boulevard, the plaintiff, accompanied by his wife, was driving his Dodge automobile in the same direction. According to his testimony the following events occurred: Just as he entered the circle a truck started to pass him. When he was on the west side, next to the curb, he noticed the truck was crowding him pretty closely and finally struck his car and knocked it over the curb. He continued on the highway within the circle until he overtook the truck, honked his horn and asked the driver, Sanders, to stop. Sanders did so, pulling over to the side of the road, and Fields parked a few feet in the rear of the truck. He left his automobile and went to the right side of the truck and addressed Sanders in the following language: ‘My God, what are you trying to do, kill a man? You ran me off the road, run me over the curb and struck my car. * * *’ Sanders denied that he had done so and Fields then said, ‘* * * let us go back and see what damage is done.’ Sanders rejoined, ‘I didn’t strike your car.’ Fields then said, ‘* * * we will talk that matter over but first let me get your number and your company and your driver’s license, so if I want to file a complaint I can * * *,’ to which Sanders replied, ‘* * * you are a damn liar, I didn’t strike your car.’ Fields then insisted, ‘* * * all I want is your number, the name of your company and your license. * * *’ He thought Sanders was going to drive away, so he turned to the left to get Sander’s number and ‘Just then the door flew open and he jumped out with a flashlight and struck at me, and missed me, and when he did that I told him if he wanted to play like that all right, if he wanted to fight, lay the flashlight down and fight like a man anyway.’ He stated that Sanders then jumped back into the truck, slammed the door and raced his motor. ‘I thought he was leaving, and I started back to the back to get his number again, and just then the door flew open and he jumped out with this large instrument and he struck me just as I turned, and hit me on the top of the head, and I sure went down on my knees— I went down part way. As I raised up he struck me again in the back of the head, knocking me to my knees, and I don’t remember any more— I mean, I was knocked unconscious.’ The large instrument with which Fields claimed he was assaulted was described by his wife as a wrench approximately 2 ½ feet long. She corroborated, in the main, her husband’s description of the events and of the injuries which he received and stated that he recovered consciousness on the way to the hospital. According to her testimony, just as she and her husband were entering the traffic circle the truck and trailer passed them, struck their car and knocked it over the curb. Paul Keener, a Long Beach officer who arrived at the scene of action shortly after Sanders drove away, testified that he examined Fields’ car and saw a small dent on the left-hand fender but could not say definitely whether it was new or old. Since, however, no proof was offered of any property damage arising from the collision, the court granted a nonsuit as to the first cause of action based thereon.
The defendant Sanders, in his recital before the jury, did not differ greatly from Mr. and Mrs. Fields in describing the sequence of events. He did state, however, that he was driving south at a slightly faster rate than Fields, who was preceding him. ‘I just pulled over to his left and went right on on that side into the circle. * * * I had slowed down to enter into the circle * * * this car came up on the side on the right, and he hollered to me, * * * he said, what do you mean, trying to run a man over the curb, you think you are awful smart driving a big truck. * * * I hollered back at him, I beg your pardon, I hadn’t run nobody over the curb.’ Sanders testified that at the time Fields was driving alongside and calling him names he knew that he had not struck Fields car but he stopped his truck. ‘Then he began to cuss me, and I told him I says we have got to get out of this circle, out of the road here, we have got traffic blocked and we went on,— he pulled up then about 60 or 70 feet into the middle of the circle and stopped and got out and came over and got up on my running board on the right-hand side and he reached over to get ahold of me and drug me out of the truck, and cussed me,’ etc. ‘So I told him again that I was an old man and couldn’t fight. * * * So he says you get off. I told him this time we had to get out of the circle because we still had traffic blocked. * * * So he got back in his car and pulled out of the circle, turned to the right on Ximeno and I thought he was gone, so, when I got started and came on out of the circle and turned around 101, he had done stopped his car and he came from the west side of Ximeno over 101, just a hundred feet, and he stepped off the curb right almost in front of my truck. I got stopped then and he stepped up on the running board again and he cussed me, and when he just kept cussing me and while we was standing there, he made a pass at me in the truck, so I just kicked the door open, right-hand door,— he was on the right, I just kicked the door open and he fell off on the ground. When he got up I was out. He made a swing at me and so I hit him, and he went down on his knees, and he got up and made another swing at me and I hit him again, and he went down then, and there was a few sailors there by that time and he was standing up still wanting me to lay the wrench down and fight. I told him I couldn’t fight. So I pulled away to keep from having any trouble. * * *’ He testified that Fields did not strike him at any time but he was frightened and stopped three times in all; the first time when ‘it looked like he was running— was going to run into me, or run me over the curb out into the middle of the circle’; the second time when ‘Mr. Fields came over and got up on my running board * * * I had to stop because I couldn’t drive and him standing there arguing with me and cussing me. I might run over the curb or somewhere else. Q. Were you in the circle at the time? A. I was. * * * I told him we would have to get out of the circle, out of the highway because I had traffic blocked with my trailer and he says o.k., come on over here and I will take you out of there and beat you to death. Q. Did you pull up and stop? A. I did, again. Q. Did he come up to you again? A. He did. * * * Q. Did you stop another time after that? A. I stopped three times in all. * * * he stepped down off the curb almost in front of my truck so I stopped against.’ Sanders testified that he at no time made a pass at Fields with a flashlight, saying he had none in his possession that night.
It is claimed in support of the appeal that the court erred ‘in giving the following instruction offered by plaintiff as modified by the Court: ‘You are instructed than an employer, as principal, is liable for injuries to third persons resulting from the negligence, torts and wrongful and unlawful acts of their employees while acting within the general scope of their employment. In the case before us the conduct of Fred Sanders shall be deemed by you to have been the conduct of Krieger Oil Company of California.’ (The italicized portion was not a part of the instructions as originally offered by plaintiff. It was added by the trial court.)’ It is also claimed that error occurred when the court refused to give an instruction requested by the defendants bearing upon a situation where both principal and agent are sued and there is a contested issue as to agency and the scope thereof. Additional claims of error are based upon the court’s denying motions for a nonsuit, for a directed verdict, for a judgment notwithstanding the verdict and for a new trial of defendants Krieger Oil Company.
It was stipulated at the trial that Sanders was an employee of the Krieger Oil Company at the time of the events heretofore related, but counsel for the defendants stated in the presence of the jury, ‘I am not admitting that he was an agent or acted in the scope of his agency at the time of this accident, no.’
By these words counsel reserved for determination the very question which the trial judge, in effect, decided when he, in charging the jury, said, ‘In the case before us the conduct of Fred Sanders shall be deemed by you to have been the conduct of Krieger Oil Company of California.’ We are of the opinion that this question should not have been decided by the judge and that, therefore, a reversal is in order.
In 35 Am.Jur. 1006 the principle upon which liability of an employer may be fixed as a result of an agent’s act is stated as follows: ‘When, however, the liability of the employer to a third person for an assault committed by his employee is to be predicated solely upon the doctrine of respondeat superior, the test of liability is whether or not the servant was acting within the scope of his employment.’ At page 1040 of the same work, the statement is made that ‘the question whether the injurious or wrongful act was or was not such as to be within the employment’s scope is ordinarily one of fact for the jury’s determination.’ In Hiroshima v. Pacific Gas & Elec. Co., 1936, 18 Cal.App.2d 24, at page 29, 63 P.2d 340, at page 343, we find the following: "Whether the act of a servant is within the scope of his duty, while acting in the furtherance of his master’s business, is a matter of fact to be determined by the jury, and not by the court as a matter of law." The court makes a similar statement in Barty v. Collins, 1930, 109 Cal.App. 94, at page 96, 292 P. 979. In Dillon v. Prudential Ins. Co. of America, 1925, 75 Cal.App. 266, 271, 272, 242 P. 736, 738, the court holds that the question whether or not the agent is acting within the scope of his employment was one to be submitted to the jury under appropriate and explicit instructions and ‘with the determination of the jury upon these questions this court cannot interfere.’ In Gousse v. Lowe, 1919, 41 Cal.App. 715, at page 720, 183 P. 295, 297, cited by appellant, we find the statement that ‘ordinarily the question of whether or not the act was within the scope of the servant’s employment should be submitted to the jury * * *.’ In Kruse v. White Brothers, 1927, 81 Cal.App. 86, at page 93, 253 P. 178, 181, also cited by appellant, we note the following: ‘Whether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury [citing cases].’
The judgment of $3,000 entered against the members of the Krieger Oil Company is reversed and the cause, as to them, is remanded for a new trial. Sanders has not appealed from that judgment entered against him jointly with the Krieger Oil Company. Judgment in the sum of $350 entered against Sanders as punitive damages is affirmed, no argument having been made that the alleged errors related to that cause of action or that the evidence was insufficient to support the implied finding of malice.
SHINN, and WOOD, JJ., concur.