# Flores v. Brown

> California Supreme Court · October 9, 1952 · 39 Cal. 2d 622

URL: https://www.frixlaw.com/law-library/cases/9532078

## Case

- **Full name:** ANITA FLORES Et Al., Plaintiffs and Appellants, v. ERNEST W. BROWN Et Al., Defendants and Appellants; MARIA ZAVALA, Plaintiff and Appellant, v. ERNEST W. BROWN Et Al., Defendants; JACK R. MURRAY, Appellant
- **Court:** California Supreme Court
- **Decided:** October 9, 1952
- **Citations:** 39 Cal. 2d 622; 248 P.2d 922; 1952 Cal. LEXIS 291
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** Traynor, Carter
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9532078

## Opinion text

CARTER, J.
I dissent.
On the question of limited new trials, I adhere to the views expressed by me in Leipert v. Honold, ante, p. 471 [ 247 P.2d 324 ], and Hamasaki v. Flotho, ante, p. 613 [ 248 P.2d 910 ]. In addition, however, I believe that it was proper to deny defendant Murray’s motion for judgment notwithstanding the verdict against him, because it is quite clear that the evidence was sufficient to show that defendant Brown was acting as Murray’s agent at the time of the accident and the latter was therefore liable on the basis of respondeat superior.
From the record it appears that while the contract was being performed Brown and Murray were engaged in either a joint trucking enterprise or Murray was the agent of Brown as the latter had the contract and was using Murray’s trailer in the performance of the trucking operation. Although the trucking work had been finished, Murray’s trailer was still at the place of operation, many miles from Murray’s home and place of business in Los Angeles and from whence it came when the trucking job was commenced. Hence the association between Brown and Murray was still in existence. As the concluding step in the association, Brown felt obligated to Murray to aid in returning the latter’s trailer to Los Angeles and hence agreed that he would pick up the trailer and return it to Los Angeles. That he did, and the accident occurred while he was on that trip. There is a clear inference from these facts that Brown was acting as Murray’s agent on that trip. It is conceded by the majority *634 that where a person drives another’s automobile for the latter’s benefit (precisely the instant case) an inference or presumption arises that the driver is acting as the owner’s agent. That such is the law has been held in many cases. It is said in Souza v. Corti, 22 Cal.2d 454, 461 [ 139 P.2d 645 ] : “As to the liability of the defendant Arthur Gigli, the record shows that defendant Corti took possession of the Dodge car for the use, benefit and accommodation and under the direction of Arthur and for the purpose of taking it to Rocca’s for Arthur. Under these circumstances Arthur was the principal and Corti was his agent. The negligence of the latter was therefore imputable to Arthur.”
The same rule has been stated repeatedly (Maberto v. Wolfe, 106 Cal.App. 202 [ 289 P. 218 ]; McWhirter v. Fuller, 35 Cal.App. 288 [ 170 P. 417 ] ; Randolph v. Hunt, 41 Cal.App. 739 [ 183 P. 358 ] ; Dierks v. Newsom, 49 Cal.App. 789 [ 194 P. 518 ]; Navarro v. Somerfeld, 35 Cal.App.2d 35 [ 94 P.2d 623 ] ; Gates v. Pendleton, 184 Cal. 797 [ 195 P. 664 ] ; Jacobus v. Brero, 190 Cal. 374 [ 212 P. 617 ] ; Grover v. Sharp & Fellows etc. Co., 66 Cal.App.2d 736 [ 153 P.2d 83 ] ; Graf v. Harvey, 79 Cal.App.2d 64 [ 179 P.2d 348 ].)
Hence in the instant case an inference arises that Brown was Murray’s agent which is sufficient to justify the verdicts against Murray.
The majority endeavors to evade that rule by stating that the case is more like one where a trip is taken in the owner’s car for a passenger’s benefit, in which it is said that the cases hold there is no inference that the owner is the passenger’s agent, or where one is transporting another’s goods in the former’s car, in which the cases are said to hold that there is no inference of agency. That answer is not satisfactory for several reasons. There is no sound reason why the rule should be any different merely because Brown was towing Murray’s trailer with his own truck. The fact remains that he was operating Murray’s trailer and his own truck on the highway for Murray’s benefit. The case is not like those relied upon by the majority such as Edwards v. Freemam, 34 Cal.2d 589 [ 212 P.2d 883 ], where the owner of the car did nothing more than give a ride to his mother to town where she had her eyes tested. She was merely being given a ride in the owner’s car. It was not a case of a person (Brown) operating another’s (Murray’s) trailer on the highways for the benefit of the latter. Here there was a clear business relationship between Brown and Murray that *635 was still continuing when the accident happened. To take from the jury this issue of fact is just another instance in which the majority has deprived a litigant of his right to a jury trial in violation of the constitutional mandate.
In view of the fact that a motion for a complete new trial was made in each of the actions the court had the power to grant the same. This is true even though the motion in Mr. Flores’s action was made by plaintiff and a similar motion was made by defendant Murray in each of the other actions and by defendant Brown in the Mrs. Flores and Felipe actions. Therefore, we are not faced with the problem presented in the Hamasaki case, supra, where the only motion granted by the trial court was plaintiff’s motion for a new trial on the issue of damages only.
I would, therefore, affirm both the order denying the motion for judgment notwithstanding the verdicts and the order granting a complete new trial on all issues.
Plaintiffs and appellants’ petition for a rehearing was denied November 3, 1952. Garter, J., was of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9532078. Public record. Not legal advice.