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(209 P.)

7. Explosives 8 Seller spilling gasoline FEENEY V. STANDARD OIL CO. (PENN. owed duty of reasonable effort to regain conSYLVANIA FIRE INS. CO. OF PHILA

trol. DELPHIA, PA., Intervener). (Civ. 2354.) A seller of gasoline, spilling it when delive

ering it to the buyer's garage, owed the duty of (District Court of Appeal, Third District, Cali- making a reasonable effort to regain control of fornia. July 20, 1922.)

the gasoline in order to prevent injury. 1. Master and servant Om 302(6)-Master not liable for servant's negligence in lighting cig

Appeal from Superior Court, Colusa Counarette.

ty; Ernest Weyand, Judge. Where defendant's servant, delivering gaso- Action by P. W. Feeney against the Standline to plaintiff's premises, was not negligent ard Oil Company, in which the Pennsylvania in spilling the gasoline, his act in dropping a Fire Insurance Company of Philadelphia, lighted match used in lighting a cigarette into Pa., intervened. From a judgment for interthe gasoline was not an act for which defendant was liable, under Civ. Code, 88 2338, 2339,

vener, defendant appeals. Affirmed. relative to a principal's liability for the negli- Pillsbury, Madison & Sutro, of San Frangence of his agent, though defendant had in- cisco, and Brown & Albery, of Colusa, for apstructed him not to smoke while delivering gas- pellant. oline.

Frank Freeman, of Willows, for respond2. Master and servant 305–Violation of in- ent.

structions no defense to action for servant's Goodfellow, Eells, Moore & Orrick, of San negligence.

Francisco (George Herrington, of San FranAn agent's violation of instructions as to cisco, of counsel), for intervener. the manner of transacting any business is no defense in a third person's action against the

FINCH, P. J. Plaintiff was the proprietor principal for the agent's negligence.

of a garage conducted by him in a building 3. Pleading m398—Variance held not to have which he occupied under a lease from the misled defendant to his prejudice.

owner thereof. The building was destroyed Where the only negligence alleged was in by a fire alleged to have been negligently spilling gasoline and dropping a lighted match caused by the defendant. Plaintiff sued as into it, but there was evidence that defendant's assignee of the owner to recover damages driver, who spilled the gasoline, did nothing to clean it up, and the case was tried as if this suffered by the destruction of the building. was in issue, the variance did not mislead de- The Pennsylvania Fire Insurance Company, fendant to its prejudice, within Code Civ. Proc. having insured the building against loss by $$ 469, 470, providing that, when a variance has fire, paid the owner the sum for which it was not actually misled the adverse party to his insured and intervened in the action. The prejudice, it is not deemed material, etc.

intervener was given judgment for the sum 4. Explosives amb-Express finding of negli. so paid, and this appeal is from the judgment

gence in not removing spilled gasoline held so rendered. not necessary to support judgment.

The facts are simple and undisputed. The The danger arising from leaving 242 gallons only question presented by the appeal is of gasoline on the cement floor of a garage in whether the fire was caused by negligence of the Sacramento valley, where it was spilled, in the defendant. The court found: the middle of an afternoon in August, would be so apparent to a man of capacity and prudence tiff ordered certain quantities of gasoline from

"That on the 23d day of August, 1917, plainthat no express finding of negligence is requir-defendant, and on said last-mentioned date deed to support a judgment.

fendant, by its agent, McDonald, delivered a 5. Explosives em 8That proprietor of garage quantity of gasolinę to plaintiff at the above

was negligent in not removing spilled gasoline mentioned building owned by said Steel. Plaindoes not necessarily relieve seller of negli- tiff had a tank inside the said building, and it gence in delivery.

was necessary for the said McDonald to draw That the proprietor of a garage knew de- the gasoline from the delivery wagon tank, in fendant's driver spilled gasoline, which he was which he had brought the gasoline to the said delivering, and was guilty of negligence in not building, and carry the same in buckets to the promptly removing it, does not necessarily re- tank in said building. That in order to pour the lieve defendant from the charge of negligence gasoline into the said tank it was necessary for in not removing it.

the said McDonald to be elevated to some ex

tent, and a box had been provided by plaintiff, 6. Explosives - Intervening independent upon which the said McDonald stood when act of negligence held not to defeat liability. pouring the gasoline into the said tank. This

Where defendant's driver spilled gasoline, box was not strong, and before the delivery of which he was delivering, his independent act gasoline was completed on said day, and while of negligence in dropping a lighted match, used the said McDonald was upon the said box with by him to light a cigarette, did not relieve some buckets of gasoline, the said box broke, defendant from the consequences of his negli- and at that time and because of that accident gent failure as its agent to remove the gaso- a large quantity of gasoline was spilled upon line spilled.

the cement floor of the said building above menFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tioned. McDonald did nothing in the way of, third person against the principal for negliremoving the gasoline spilled as before men- gence of the agent. Was the failure of Mctioned, or preventing it from catching fire. Donald to remove the spilled gasoline acAfter completing delivery of the gasoline, Mc- tionable negligence for which defendant is Donald attempted to have his delivery tags ap- responsible? Appellant contends that the proved by the plaintiff; but plaintiff put him off for a short time upon the claim that he finding as to such failure is insufficient to (plaintiff) was busy at that particular moment. support the judgment on the issue of negliMcDonald waited for plaintiff some 10 or 15 gence on three grounds: (1) That such failminutes, during which time he engaged in some ure was not alleged in the complaint in inconversation as to going swimming with some tervention; (2) that the court did not find young men about the said building, and while so that the omission to remove the gasoline conwaiting lighted a cigarette and carelessly and stituted negligence; (3) that no duty rested negligently dropped a match lighted for said upon defendant to remove it. purpose on the floor and into the gasoline that had been spilled as aforesaid. The said gaso- spilling the gasoline and igniting it. Two

[3] The only negligence alleged was that of line caught fire from said match, and as the result thereof the said building belonging to the witnesses testsfied without objection, in ansaid Edward L. Steel was destroyed by fire."

swer to direct questions on the subject, that

McDonald did not "to clean it up, or Neither party contends that the foregoing mop it up." In cross-examination of such findings are not supported by the evidence. witnesses, appellant proved that no one else There appears to be no evidence supporting removed the gasoline from the floor. From the finding that the plaintiff provided the the foregoing it appears that the case was box on which McDonald stood at the time tried upon the theory that McDonald's failthe gasoline was spilled, but that fact is im- ure to remove the spilled gasoline was in ismaterial, since there is no finding of negli- sue. Had defendant objected to such testi. gence in that connection on the part of either mony at the trial, the.court probably would McDonald or plaintiff. The evidence shows have permitted intervener to amend by althat the fire occurred about 3 o'clock in the leging such failure. afternoon, and that the quantity of gasoline

“No variance between the allegation in a spilled was from 212 to 3 gallons.

pleading and the proof is to be deemed material, [1, 2] Since the court did not find that the unless it has actually misled the adverse party gasoline was negligently spilled, the judg- to his prejudice in maintaining his action or dement must have been grounded upon Mc-fense upon the merits. Whenever it appears Donald's negligence in igniting the gasoline, that a party has been so misled, the court may or his failure to promptly remove it from the order the pleading to be amended, upon such cement floor of the garage. Section 2338 of terms as may be just." Code Ciy. Proc. § 469. the Civil Code provides :

"Where the variance is not material, as pro

vided in the last section, the court may direct “A principal is responsible to third persons the fact to be found according to the evidence, for the negligence of his agent in the trans

or may order an immediate amendment, without action of the business of the agency, including costs." Code Civ. Proc. $ 470. wrongful acts committed by such agent in and as a part of the transaction of such business."

It cannot be said that the defendant was Section 2339 provides:

misled to its prejudice by the variance under

consideration. "A principal is responsible, for no other

[4] The omission to find in express terms wrongs committed by his agent than those mentioned in the last section, unless he has author. that the defendant's failure to remove the ized or ratified them, even though they are com- gasoline from the garage floor constituted mitted while the agent is engaged in his serv- negligence is not fatal. The highly inflamice."

mable and volatile qualities, of gasoline are

well known. That the gas generated thereUnder the rule thus declared it seems clear from is a dangerous explosive is a matter of that the defendant is not responsible for Mc-common knowledge. The danger arising Donald's negligent act in dropping the light from leaving 242 gallons of gasoline spread ed match into the gasoline. The lighting of out over the cement floor of a garage in the the cigarette was no part of the transaction Sacramento valley in the middle of an afterof the defendant's business. It was an inde- noon in August would be apparent to a man pendent act for McDonald's personal enjoy- of ordinary capacity and prudence. The ment. It occurred during the time of his necessity of its prompt and careful removal transaction of the defendant's business, but to avoid probable injury is plain. The probwas no part thereof and was not in the ability of ignition by a spark from an autocourse of his employment. The fact that de mobile engine, a carelessly lighted match, or fendant had instructed McDonald not to the fire of a cigar or cigarette, is a matter smoke while delivering gasoline does not en- ; of common experience. The danger to be apter into the problem. An agent's violation of prehended was well within the range of reainstructions as to the manner of transacting sonable foresight. The facts and circumany business is no defense in an action by a stances were such that no inference but that

(209 P.) of negligence can be logically drawn from the , ployees of the defendant, wantonly and withfailure to remove the gasoline which had out any necessity therefor, and contrary to been accidentally spilled. Under such state of the rules of the company, placed some torfacts an express finding of negligence is not pedoes in front of the wheels of the caboose required. Cooley v. Brunswig Drug Co., 30 in which some women were riding, with the Cal. App. 58, 157 Pac. 13; Catlin v. Union intention to frighten them. When the train Oil Co., 31 Cal. App. 597, 161 Pac. 29; Van moved forward, one of the torpedoes failed Praag v. Gale, 107 Cal. 438, 40 Pac, 555; to explode, and it was later picked by some Jacobson V. Northwestern Pac. R. R. Co., children, one of whom was injured by its ex175 Cal. 468, 166 Pac. 3; Grossetti v. Swea- plosion. The court said: sey, 176 Cal. 793, 169 Pac. 687.

"The duty intrusted by the railway company (5-7] The next question is whether it was to the conductor in regard to these torpedoes the duty of defendant to remove the spilled was, not only to use them as signals with the gasoline. The evidence shows that during requisite care and caution, but to observe like the time of the delivery of the gasoline, and care and caution in the custody of them, when until the fire started, the proprietor of the not in use. The servant's custody of them, garage was working on an automobile in when not in use, was as much a part of his em some part of the garage not definitely lo- ployment as was the use of them as signals cated by the evidence in the record. The where they were carried when not in use, and,

when required. In taking them from the place exact location seems to have been made clear in mere caprice, placing them on the track for to the trial court by means of a diagram re- the purpose of frightening the ladies, he was ferred to by the witnesses, but this diagram not, it is true, within his employment as to the was not included in the record on appeal. It use of them; but in so doing he violated the does not appear from the evidence whether duties connected with his employment as the the proprietor knew, prior to the fire, that custodian of them, and thereby made his masany gasoline had been spilled. If it be as- ter liable for the consequences of his neglect, in sumed, however, that the proprietor had such the same manner and to the same extent as if knowledge, and that he was guilty of negli- it had been done by the company itself. gence in not promptly removing it, it does Suppose a servant, with others under his con

trol, employed with a construction train. * not necessarily follow that the defendant was He may for a time quit his employment, and not also negligent. Nor would McDonald's with his men go off on affairs of his own. independent act of negligence in dropping the Whilst thus out of the master's employment, lighted match relieve the defendant from the he may build a fire, which, through his negliconsequences of his negligent failure, as its gence, may consume the property of another, agent, to remove the gasoline.

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

as has been held, the master would not be liabe extremely probable that some other person ble for the loss resulting from the fire, because will unjustifiably set it in motion to the injury the act was done outside the servant's employof a third, and if that injury should be so ment,

yet it is equally certain that brought about, I presume that the sufferer for the loss occasioned by the servant's neglimight have redress by action against both or gence in leaving the train on the track the either of the two, but unquestionably against master would be liable in damages, for the plain the first.” Lynch v. Nurdin, 12 Q. B. (A. & reason that, in abandoning the custody of the E. (N. S.]) 29.

train, he was guilty of negligence in the em

ployment of the master, whilst in building the Having accidentally lost possession of a fire he was not.” dangerous material, of which it had voluntarily taken charge, the defendant owed the See, also, Wells v. Gallagher, 144 Ala. duty to others of making reasonable effort 363, 39 South. 747, 3 L. R. A. (N. S.) 759, to regain control, in order to prevent injury. 113 Am. St. Rep. 50. While the extent of If a person engaged in the transportation of injury likely to result from the negligent condynamite should knowingly leave a part trol of other explosives may be greater, the thereof, accidentally dropped, in a place probability of injury from gasoline left unwhere it probably would be exploded through der the circumstances here disclosed is not accident or the negligence of others, he cer- less than is usual in the case of higher extainly would be responsible, in the event of plosives, and the point of law under discusan explosion thereof, for injury inflicted on sion has to do with the probability rather persons who were without fault. The duty than the extent of injury. That the same of safely keeping the dangerous material rules apply to the safe-keeping of gasoline would be continuous from the time it was as to that of other explosives is illustrated received until it was safely delivered, a duty by the following cases: Childs v. Standard which could not be escaped by knowingly Oil Co., 149 Minn. 166, 182 N. W. 1000; Newabandoning the explosive after the accidental | ton v. Texas Co., 180 N. C. 561, 105 S. E. 433; loss of its possession. In Pittsburgh, etc., Ry. Leahy v. Standard Oil Co., 220 Mass. 90, 107 Co. v. Shields. 47 Ohio St. 387, 24 N. D. 658, N. E. 458; Id., 224 Mass. 352, 112 N. E. 950; 8 L. R. A. 464, 21 Am. St. Rep. 840, the em- | Watson y. Kentucky & Indiana Bridge & R.

Co., 137 Ky. 619, 126 S. W. 146, 129 S. W. niation had not been filed or charge made, and 341. It seems clear that the findings sup- i defendant is to be accorded every presumption port the judgment.

of innocence in his favor, held properly modified. The judgment is affirmed.

6. Forgery Card 5 Instruction that, though de.

fendant forged the check, if he did not utter We concur: HART, J.; BURNETT, J. it with intent to defraud, he should be acquit.

ted, held properly refused.

Under Pen. Code, $ 470, the making, forging, or uttering of a false check constitutes a crime; hence an instruction that, though de

fendant did make and forge the check, if he did PEOPLE v. PAULI. (Cr. 1047.) not utter, publish, and pass the check with the

intent to defraud the particular person named, (District Court of Appeal, First District, Di. he should be acquitted, was properly refused. vision 1, California. July 21, 1922.)

7. Indictment and information om 149-Instruc. 1. Witnesses 37(4)-Striking out evidence

tion attacking information on ground of un. of character witnesses, based on limited per

certainty, being in nature of a demurrer, sonal acquaintance held not error.

comes too late. Where, in a prosecution for forgery, it de

In a prosecution for forgery, an instruction veloped that the evidence of character witness that the information was defective in failing es was based on personal contact with defend- to sufficiently charge defendant with having ant, who was a stranger in each community in made and forged the check in question with inwhich the witnesses resided, and had not lived tent to defraud, which in substance was a delong enough in either community to have a

murrer to the information, was properly regeneral reputation therein, there was no error fused, where no demurrer was interposed by in excluding the evidence.

defendant on his arraignment. 2. Criminal law m379-That character or rep. 18. Criminal law Ow829(1)-No error to refuse utation of a person has not been discussed is

instructions covered by given instructions. cogent evidence of good character and reputa- No error can be predicated on the refusal tion.

to give instructions which are substantially covThat the character or reputation of defendered by the instructions given. ant in the community in which he resides has not been discussed or questioned is cogent evi- Appeal from Superior Court, Santa Clara dence of good character and reputation, but the County; J. R. Welch, Judge. application of this rule presupposes a sufficient period of residence and extent of acquaintance- George H. Pauli was convicted of forgery, ship in the community for the person's charac- and he appeals. Affirmed. ter to have become known.

Peter F. Morettini, of San Jose, for ap3. Criminal law Omw 379–Stra

er in a commu- pellant. nity has not such a good reputation to which

U. S. Webb, Atty. Gen., and John H. Riorany one may testify.

dan, Deputy Atty. Gen., for the People. Defendant, a stranger in a community, working for a single employer therein for a few months, going about little, and forming no RICHARDS, J. The defendant was charged associations, does not have a general reputation in the information with the crime of making for truth, honesty, and integrity therein to and uttering a forged check with intent to which any one can testify.

defraud. He was tried, convicted, and sen4. Criminal law mo 1170(1) - Excluding evi.

tenced to imprisonment for the term prodence of good reputation held not prejudicial, vided by law. His appeal is from the judgwhere accused testified to a prior conviction. ment of conviction. The exclusion of evidence of good reputa

[1-4] The first contention which the appeltion of defendant in a prosecution for forgery lant makes upon said appeal is that the was not prejudicial, where defendant later tes- trial court committed prejudicial error in tified that he had served a term in the peniten- granting the motion of the prosecution to tiary under an assumed name on plea of guilty strike out the testimony of two certain charof the crime of forgery.

acter witnesses who had testified to the good 5. Criminal law wa834(4)—Instruction that esty, integrity and veracity.

reputation of the defendant for truth, hon

The record the information is merely a charge, and cannot be considered in determining guilt, held touching this contention shows the following properly modified.

state of facts: In a prosecution for forgery, an instruc

The defendant called three witnesses to tion 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.) kept a general merchandise store in San , stranger in the community, working for a Lorenzo, Cal., gave strong testimony as to single employer therein for a few months, defendant's good reputation while he was going about little, and forming no associaworking in and about San Lorenzo from tions, cannot be said to have a general repabout April, 1920, to October, 1920, and his utation for truth, honesty, and integrity testimony was allowed to stand. The next therein to which any one can testify. The witness, E. H. Crane, was an orchardist at cross-examination of both of these witnesses San Lorenzo, for whom the defendant had developed precisely this state of facts conworked from March to October, 1920, and cerning this defendant, and showed conwho on direct examination, in response to clusively in each case the opinion of the witthe usual inquiries, stated that he knew the ness was based upon his personal contact defendant's reputation in that community with the defendant, who was a stranger in and that it was good. On cross-examination, each community, and had not lived long however, it developed that his opinion on enough in either place to have a general or that subject was based wholly on his person- any reputation therein. It may be said in al dealings with the defendant and the qual. addition that the prosecution in this case ity of his work with him; that the defend- made no attack upon the reputation or charant was a stranger to him and to the com- acter of the defendant, and that, in addition munity when he came to work for him; that to the presumption which attaches in every he lived on his place, went out little, did not case, he had the affirmative testimony of form any associations, and left the commu- one witness to his good reputation. It may nity when he had ceased to work for him. be further said in this connection that the The witness further testified that he never defendant took the witness stand in his own heard his reputation discussed; never heard behalf and testified that he was an ex-conany one mention his name or refer to him in | vict, having served a term in Folsom under any way. The court upon this showing an assumed name upon his plea of guilty of granted a motion to strike out the testimony the crime of forgery. It cannot, therefore, of this witness. The next witness, Daniel be said that the defendant was prejudicially B. Wade, also answered the usual inquiries affected by the rulings of the trial court upupon direct examination by testifying that on the motion to strike out the testimony he knew the defendant's reputation and that of these two witnesses, even if such rulings it was good; but upon cross-examination it were conceded to be erroneous. developed that the defendant had come, a [5] The appellant's next contention is that stranger, to work for him on his ranch near the trial court was in error in refusing to Alviso, in the county of Santa Clara, in the give without modification the following infall of the year 1920, and had lived and struction : worked on his place about two months, and

"You are instructed that the information is that he had also worked for him at another merely a charge brought against the defendant time for a brief period; that he formed his (and is not evidence in the case), and such a opinion as to his good reputation wholly from charge can have no more consideration toith the work he had done on the place, and that you in determining whether or not the defendhe never heard any one mention his name or information had not been filed or charge made;

ant is guilty of the offense charged than if such talk about him or criticize him, and had and in your deliberations you are to put this never discussed his reputation with any one. fact out of your minds, and are to accord to the The testimony of this witness was also defendant every presumption of innocence in stricken out on motion of the prosecution.

his favor. Even if you find that the defendant We perceive no error in the ruling of the did make and forge this check, but did not uttrial court in striking out the testimony of ter, publish, and pass said check with the in

tont then and there and thereby to defraud the these last two witnesses. It is, of course, a particular person named in the information. well-known rule regarding evidence of rep- then and in that event you must acquit the deutation that the fact that the character or fendant, and your verdict must be not guilty." reputation of a person in the community in which he resides has not been discussed or The words in parentheses in the above inquestioned is cogent evidence of the person's struction constituted the modifications made good character and good reputation. It was by the court, and the underlined portion so held in People v. Adams, 137 Cal. 580, thereof was the portion stricken out by the 70 Pac. 662, and the quite recent case of court. The abbreviated instruction, as thus People v. Stennett (Cal. App.) 197 Pac. 372, modified, was given. The appellant contends and there can be no doubt that this is the that he was entitled to the whole instruction general rule upon the subject. But the ap- without modification or elision. We cannot plication of this rule presupposes a sufficient sustain this contention. The instruction as period of residence and extent of acquaint- requested embraced two distinct propositions, anceship, in the community from which such as to the first of which the court's modificatestimony is drawn, for the person's char- tion in parentheses merely made the inacter to have become known, and for some struction state more tersely what the desort of reputation thereof to have arisen. A fendant had requested more diffusely.

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