305-Violation of in-ent.

2. Master and servant structions no defense to action for servant's Goodfellow, Eells, Moore & Orrick, of San negligence. Francisco (George Herrington, of San Francisco, of counsel), for intervener.

An agent's violation of instructions as to the manner of transacting any business is no defense in a third person's action against the principal for the agent's negligence..

3. Pleading 398-Variance held not to have misled defendant to his prejudice.

Where the only negligence alleged was in spilling gasoline and dropping a lighted match into it, but there was evidence that defendant's driver, who spilled the gasoline, did nothing to clean it up, and the case was tried as if this was in issue, the variance did not mislead defendant to its prejudice, within Code Civ. Proc. §§ 469, 470, providing that, when a variance has not actually misled the adverse party to his prejudice, it is not deemed material, etc. 4. Explosives 8-Express finding of negligence in not removing spilled gasoline held not necessary to support judgment.

The danger arising from leaving 21⁄2 gallons of gasoline on the cement floor of a garage in the Sacramento valley, where it was spilled, in the middle of an afternoon in August, would be

so apparent to a man of capacity and prudence that no express finding of negligence is required to support a judgment.

5. Explosives 8-That proprietor of garage was negligent in not removing spilled gasoline does not necessarily relieve seller of negligence in delivery.

That the proprietor of a garage knew defendant's driver spilled gasoline, which he was delivering, and was guilty of negligence in not promptly removing it, does not necessarily relieve defendant from the charge of negligence in not removing it. 6. Explosives

8 Intervening independent act of negligence held not to defeat liability. Where defendant's driver spilled gasoline, which he was delivering, his independent act of negligence in dropping a lighted match, used by him to light a cigarette, did not relieve defendant from the consequences of his negligent failure as its agent to remove the gasoline spilled.

FINCH, P. J. Plaintiff was the proprietor of a garage conducted by him in a building which he occupied under a lease from the owner thereof. The building was destroyed by a fire alleged to have been negligently caused by the defendant. Plaintiff sued as assignee of the owner to recover damages suffered by the destruction of the building. The Pennsylvania Fire Insurance Company, having insured the building against loss by fire, paid the owner the sum for which it was insured and intervened in the action. The intervener was given judgment for the sum so paid, and this appeal is from the judgment so rendered.

The facts are simple and undisputed. The only question presented by the appeal is whether the fire was caused by negligence of the defendant. The court found:

tiff ordered certain quantities of gasoline from "That on the 23d day of August, 1917, plaindefendant, and on said last-mentioned date defendant, by its agent, McDonald, delivered a quantity of gasoline to plaintiff at the abovementioned building owned by said Steel. Plaintiff had a tank inside the said building, and it was necessary for the said McDonald to draw the gasoline from the delivery wagon tank, in which he had brought the gasoline to the said building, and carry the same in buckets to the tank in said building. That in order to pour the gasoline into the said tank it was necessary for the said McDonald to be elevated to some extent, and a box had been provided by plaintiff, upon which the said McDonald stood when pouring the gasoline into the said tank. This box was not strong, and before the delivery of gasoline was completed on said day, and while the said McDonald was upon the said box with some buckets of gasoline, the said box broke, and at that time and because of that accident a large quantity of gasoline was spilled upon the cement floor of the said building above men

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tioned. McDonald did nothing in the way of removing the gasoline spilled as before mentioned, or preventing it from catching fire. After completing delivery of the gasoline, McDonald attempted to have his delivery tags approved by the plaintiff; but plaintiff put him off for a short time upon the claim that he (plaintiff) was busy at that particular moment. McDonald waited for plaintiff some 10 or 15 minutes, during which time he engaged in some conversation as to going swimming with some young men about the said building, and while so waiting lighted a cigarette and carelessly and negligently dropped a match lighted for said purpose on the floor and into the gasoline that had been spilled as aforesaid. The said gasoline caught fire from said match, and as the result thereof the said building belonging to the said Edward L. Steel was destroyed by fire."

Neither party contends that the foregoing findings are not supported by the evidence. There appears to be no evidence supporting the finding that the plaintiff provided the box on which McDonald stood at the time the gasoline was spilled, but that fact is immaterial, since there is no finding of negligence in that connection on the part of either McDonald or plaintiff. The evidence shows that the fire occurred about 3 o'clock in the afternoon, and that the quantity of gasoline spilled was from 2 to 3 gallons.

third person against the principal for negli-
gence of the agent. Was the failure of Mc-
Donald to remove the spilled gasoline ac-
tionable negligence for which defendant is
responsible? Appellant contends that the
finding as to such failure is insufficient to
support the judgment on the issue of negli-
gence on three grounds: (1) That such fail-
ure was not alleged in the complaint in in-
tervention; (2) that the court did not find
that the omission to remove the gasoline con-
stituted negligence; (3) that no duty rested
upon defendant to remove it.

spilling the gasoline and igniting it.
[3] The only negligence alleged was that of
Two
witnesses testified without objection, in an-
swer to direct questions on the subject, that
McDonald did nothing "to clean it up, or
mop it up." In cross-examination of such
witnesses, appellant proved that no one else
removed the gasoline from the floor. From
the foregoing it appears that the case was
tried upon the theory that McDonald's fail-
ure to remove the spilled gasoline was in is-
sue. Had defendant objected to such testi-
mony at the trial, the court probably would
have permitted intervener to amend by al-
leging such failure.

"No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or deMc-fense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just." Code Civ. Proc. § 469.

[1, 2] Since the court did not find that the gasoline was negligently spilled, the judgment must have been grounded upon Donald's negligence in igniting the gasoline, or his failure to promptly remove it from the cement floor of the garage. Section 2338 of the Civil Code provides:

"A principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business."

Section 2339 provides:

"A principal is responsible, for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service."

Under the rule thus declared it seems clear that the defendant is not responsible for McDonald's negligent act in dropping the lighted match into the gasoline. The lighting of the cigarette was no part of the transaction of the defendant's business. It was an independent act for McDonald's personal enjoyment. It occurred during the time of his transaction of the defendant's business, but was no part thereof and was not in the course of his employment. The fact that defendant had instructed McDonald not to smoke while delivering gasoline does not enter into the problem. An agent's violation of instructions as to the manner of transacting any business is no defense in an action by a

"Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs." Code Civ. Proc. § 470.

It cannot be said that the defendant was misled to its prejudice by the variance under consideration.

[4] The omission to find in express terms that the defendant's failure to remove the gasoline from the garage floor constituted negligence is not fatal. The highly inflammable and volatile qualities of gasoline are well known. That the gas generated therefrom is a dangerous explosive is a matter of common knowledge. The danger arising from leaving 21⁄2 gallons of gasoline spread out over the cement floor of a garage in the Sacramento valley in the middle of an afternoon in August would be apparent to a man of ordinary capacity and prudence. The necessity of its prompt and careful removal to avoid probable injury is plain. The probability of ignition by a spark from an automobile engine, a carelessly lighted match, or the fire of a cigar or cigarette, is a matter of common experience. The danger to be apprehended was well within the range of reasonable foresight. The facts and circumstances were such that no inference but that

(209 P.)

of negligence can be logically drawn from the failure to remove the gasoline which had been accidentally spilled. Under such state of facts an express finding of negligence is not required. Cooley v. Brunswig Drug Co., 30 Cal. App. 58, 157 Pac. 13; Catlin v. Union Oil Co., 31 Cal. App. 597, 161 Pac. 29; Van Praag v. Gale, 107 Cal. 438, 40 Pac. 555; Jacobson v. Northwestern Pac. R. R. Co., 175 Cal. 468, 166 Pac. 3; Grossetti v. Sweasey, 176 Cal. 793, 169 Pac. 687.

[5-7] The next question is whether it was the duty of defendant to remove the spilled gasoline. The evidence shows that during the time of the delivery of the gasoline, and until the fire started, the proprietor of the garage was working on an automobile in some part of the garage not definitely located by the evidence in the record. The exact location seems to have been made clear to the trial court by means of a diagram referred to by the witnesses, but this diagram was not included in the record on appeal. It does not appear from the evidence whether the proprietor knew, prior to the fire, that any gasoline had been spilled. If it be assumed, however, that the proprietor had such knowledge, and that he was guilty of negligence in not promptly removing it, it does not necessarily follow that the defendant was not also negligent. Nor would McDonald's Independent act of negligence in dropping the lighted match relieve the defendant from the consequences of his negligent failure, as its agent, to remove the gasoline.

ployees of the defendant, wantonly and without any necessity therefor, and contrary to the rules of the company, placed some torpedoes in front of the wheels of the caboose in which some women were riding, with the intention to frighten them. When the train moved forward, one of the torpedoes failed to explode, and it was later picked by some children, one of whom was injured by its explosion. The court said:

*

*

*

"The duty intrusted by the railway company to the conductor in regard to these torpedoes was, not only to use them as signals with the requisite care and caution, but to observe like care and caution in the custody of them, when not in use. The servant's custody of them, when not in use, was as much a part of his employment as was the use of them as signals where they were carried when not in use, and, when required. In taking them from the place in mere caprice, placing them on the track for the purpose of frightening the ladies, he was not, it is true, within his employment as to the use of them; but in so doing he violated the duties connected with his employment as the custodian of them, and thereby made his master liable for the consequences of his neglect, in the same manner and to the same extent as if it had been done by the company itself. Suppose a servant, with others under his control, employed with a construction train. * He may for a time quit his employment, and with his men go off on affairs of his own. Whilst thus out of the master's employment, he may build a fire, which, through his negligence, may consume the property of another, and in the meantime loss of life and property may result from a collision with the train neg"If I am guilty of negligence in leaving any-ligently left standing on the track. Now, whilst, thing dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." Lynch v. Nurdin, 12 Q. B. (A. & E. [N. S.]) 29.

Having accidentally lost possession of a dangerous material, of which it had voluntarily taken charge, the defendant owed the duty to others of making reasonable effort to regain control, in order to prevent injury. If a person engaged in the transportation of dynamite should knowingly leave a part thereof, accidentally dropped, in a place where it probably would be exploded through accident or the negligence of others, he certainly would be responsible, in the event of an explosion thereof, for injury inflicted on persons who were without fault. The duty of safely keeping the dangerous material would be continuous from the time it was received until it was safely delivered, a duty which could not be escaped by knowingly abandoning the explosive after the accidental loss of its possession. In Pittsburgh, etc., Ry. Co. v. Shields, 47 Ohio St. 387, 24 N. E. 658, 8 L. R. A. 464, 21 Am. St. Rep. 840, the em

*

as has been held, the master would not be liable for the loss resulting from the fire, because the act was done outside the servant's employment, *

yet it is equally certain that for the loss occasioned by the servant's negligence in leaving the train on the track the master would be liable in damages, for the plain reason that, in abandoning the custody of the train, he was guilty of negligence in the employment of the master, whilst in building the fire he was not."

See, also, Wells v. Gallagher, 144 Ala. 363, 39 South. 747, 3 L. R. A. (N. S.) 759, 113 Am. St. Rep. 50. While the extent of injury likely to result from the negligent control of other explosives may be greater, the probability of injury from gasoline left under the circumstances here disclosed is not less than is usual in the case of higher explosives, and the point of law under discussion has to do with the probability rather than the extent of injury. That the same rules apply to the safe-keeping of gasoline as to that of other explosives is illustrated by the following cases: Childs v. Standard Oil Co., 149 Minn. 166, 182 N. W. 1000; Newton v. Texas Co., 180 N. C. 561, 105 S. E. 433; Leahy v. Standard Oil Co., 220 Mass. 90, 107 N. E. 458; Id., 224 Mass. 352, 112 N. E. 950; Watson v. Kentucky & Indiana Bridge & R.

That the character or reputation of defend-ered by the instructions given. ant in the community in which he resides has not been discussed or questioned is cogent evidence of good character and reputation, but the application of this rule presupposes a sufficient period of residence and extent of acquaintanceship in the community for the person's character to have become known.

Appeal from Superior Court, Santa Clara County; J. R. Welch, Judge.

In a prosecution for forgery, an instruction that the information is merely a charge his good reputation-Manuel Picano, E. H. brought against defendant, and as such can Crane, and Daniel B. Wade. The first of have no more consideration in determining these witnesses, Picano, who was a life inwhether defendant is guilty than if such infor-surance agent and postmaster, and who also

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.)

single employer therein for a few months, going about little, and forming no associations, cannot be said to have a general reputation for truth, honesty, and integrity therein to which any one can testify. The cross-examination of both of these witnesses developed precisely this state of facts concerning this defendant, and showed conclusively in each case the opinion of the witness was based upon his personal contact with the defendant, who was a stranger in

enough in either place to have a general or any reputation therein. It may be said in addition that the prosecution in this case made no attack upon the reputation or character of the defendant, and that, in addition to the presumption which attaches in every case, he had the affirmative testimony of one witness to his good reputation. It may be further said in this connection that the defendant took the witness stand in his own behalf and testified that he was an ex-convict, having served a term in Folsom under an assumed name upon his plea of guilty of the crime of forgery. It cannot, therefore, be said that the defendant was prejudicially affected by the rulings of the trial court upon the motion to strike out the testimony of these two witnesses, even if such rulings were conceded to be erroneous.

kept a general merchandise store in San | stranger in the community, working for a Lorenzo, Cal., gave strong testimony as to defendant's good reputation while he was working in and about San Lorenzo from about April, 1920, to October, 1920, and his testimony was allowed to stand. The next witness, E. H. Crane, was an orchardist at San Lorenzo, for whom the defendant had worked from March to October, 1920, and who on direct examination, in response to the usual inquiries, stated that he knew the defendant's reputation in that community and that it was good. On cross-examination, each community, and had not lived long however, it developed that his opinion on that subject was based wholly on his personal dealings with the defendant and the quality of his work with him; that the defendant was a stranger to him and to the community when he came to work for him; that he lived on his place, went out little, did not form any associations, and left the community when he had ceased to work for him. The witness further testified that he never heard his reputation discussed; never heard any one mention his name or refer to him in any way. The court upon this showing granted a motion to strike out the testimony of this witness. The next witness, Daniel B. Wade, also answered the usual inquiries upon direct examination by testifying that he knew the defendant's reputation and that it was good; but upon cross-examination it developed that the defendant had come, a stranger, to work for him on his ranch near Alviso, in the county of Santa Clara, in the fall of the year 1920, and had lived and worked on his place about two months, and that he had also worked for him at another time for a brief period; that he formed his opinion as to his good reputation wholly from the work he had done on the place, and that he never heard any one mention his name or talk about him or criticize him, and had never discussed his reputation with any one. The testimony of this witness was also stricken out on motion of the prosecution. We perceive no error in the ruling of the trial court in striking out the testimony of these last two witnesses. It is, of course, a well-known rule regarding evidence of reputation that the fact that the character or reputation of a person in the community in which he resides has not been discussed or questioned is cogent evidence of the person's good character and good reputation. It was so held in People v. Adams, 137 Cal. 580, 70 Pac. 662, and the quite recent case of People v. Stennett (Cal. App.) 197 Pac. 372, and there can be no doubt that this is the general rule upon the subject. But the application of this rule presupposes a sufficient period of residence and extent of acquaintanceship, in the community from which such testimony is drawn, for the person's character to have become known, and for some sort of reputation thereof to have arisen. A

[5] The appellant's next contention is that the trial court was in error in refusing to give without modification the following instruction:

"You are instructed that the information is merely a charge brought against the defendant (and is not evidence in the case), and such a charge can have no more consideration with you in determining whether or not the defendinformation had not been filed or charge made; ant is guilty of the offense charged than if such and in your deliberations you are to put this fact out of your minds, and are to accord to the defendant every presumption of innocence in his favor. Even if you find that the defendant did make and forge this check, but did not utter, publish, and pass said check with the intent then and there and thereby to defraud the particular person named in the information. then and in that event you must acquit the defendant, and your verdict must be not guilty."

The words in parentheses in the above instruction constituted the modifications made by the court, and the underlined portion thereof was the portion stricken out by the court. The abbreviated instruction, as thus modified, was given. The appellant contends that he was entitled to the whole instruction without modification or elision. We cannot sustain this contention. The instruction as requested embraced two distinct propositions, as to the first of which the court's modification in parentheses merely made the instruction state more tersely what the defendant had requested more diffusely.