Defendants appeal from a judgment entered on a verdict rendered against them in an action for the death of Harry Maaskant, arising out of an automobile accident in which an automobile operated by said deceased collided with an automobile owned by appellants Shinagawa and Matsui and operated by appellant Matsui. Appellant M. D. Hopper was named as a co-defendant and judgment was entered against said appellant upon the theory that at the time of the fatal accident appellant George Matsui was an employee and agent of appellant Hopper, and appellant Hopper was therefore liable under the doctrine of respondeat superior.

No brief has been filed by appellants Matsui and Shinagawa, but by stipulation said appellants are resting their appeal upon the briefs of their co-appellant Hopper. No claim is made in the briefs filed that the evidence is insufficient to support a finding of actionable negligence on the part of appellant Matsui, but it is claimed by appellants that the undisputed evidence shows that at the time of the accident appellant Matsui was not in the employ of appellant Hopper but was an independent contractor.

Before proceeding to consider this contention it is well to quote from Juchert v. California Water Service Co., 16 Cal. (2d) 500 [ 106 Pac. (2d) 886 ], where our Supreme Court said at page 503:

Appellants quote numerous excerpts from the testimony which, they assert, show that Matsui was not an employee but was an independent contractor. They contend that the testimony shows that appellant Matsui merely supplied a Japanese crew of laborers to appellant Hopper and other farmers, and was free to come and go as he pleased; that he was not told by appellant Hopper as to the manner in which the work should be done but merely that there was a certain piece of work to be done and the number of men needed; and that on the morning of the accident appellant Hopper’s foreman told appellant Matsui that it was too windy to continue sulphuring, and that the Japanese crew should be put to some other work, and while Matsui was on his way to stop the crew from sulphuring the accident occurred.

Appellants then proceed to quote numerous authorities stating the well-settled rules as to the distinction between an employee and an independent contractor. It is not necessary to refer to these because the most casual reading of the record shows that appellants have omitted to refer to testimony which clearly gave the jury the right to infer that appellant Matsui was an employee of appellant Hopper, and we are, of course, not concerned here with mere conflicts in the testimony.

The following appears in the testimony of appellant Matsui:

It is quite apparent from the foregoing that the evidence is sufficient to support the finding that appellant Matsui was an employee of appellant Hopper,

Appellants next contend that the trial court committed error in giving an instruction on the presumption of due care. The instruction given was as follows:

Appellants argue that the giving of this instruction was error “for the reason that from the testimony of plaintiffs’ own witnesses, the presumption of due care on the part of decedent Harry Maaskant was dispelled and disappeared from the case entirely.” Appellants then quote testimony of respondents’ witnesses to show that the. intersection at which the accident occurred was an obstructed intersection, and then quote testimony which, they assert, shows that decedent was approaching at a high rate of speed. There was no testimony as to the rate of speed at which decedent was traveling, but appellants refer to the testimony of a witness who heard the roar of the exhaust of decedent’s automobile as indicating a high rate of speed. There is, however, testimony of the same witness ascribing the roar to a hole in the muffler. No witness produced by plaintiffs saw the accident, the only testimony of plaintiffs’ witness being that he saw the top of decedent’s automobile the instant of the collision, but had not seen it before.'

In the case of Mar Shee v. Maryland Assurance Corporation, 190 Cal. 1 [ 210 Pac. 269 ], our Supreme Court said, at page 9:

The testimony of plaintiffs’ witnesses in this ease falls far short of establishing by uncontradieted testimony that the facts proved are so irreconcilable with the presumption of due care on the part of the deceased as to dispel the presumption and cause it to disappear from the case.

In the case of Westberg v. Willde, 14 Cal. (2d) 360 [ 94 Pac. (2d) 590 ], the court said, at page 367:

In the case of Stroh v. Bauman, 37 Cal. App. (2d) 241 [ 99 Pac. (2d) 337 ], this court said at page 244:

The instruction now challenged by appellants contained the qualification that the presumption was a species of evidence and “shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence”. The jury was clearly told that the presumption could be overcome by satisfactory evidence. Under the authorities cited the instruction was properly given by the court.

Appellants’ third contention is that the court erred in refusing to give the following instruction offered by them:

This contention is utterly lacking in merit because the jury was very fully instructed upon the subject of contributory negligence, and furthermore, at the request of appellants, the court gave the following instruction:

Appellants ’ final contention is that one of the counsel for respondents was guilty of prejudicial misconduct in conversing with a juror during a recess, and that the court erred in denying appellants’ motion for a mistrial. It appears that during the recess a juror, who remained in the courtroom, asked counsel, in the presence of one of the co-counsel for appellants, a question regarding a map which had been introduced in evidence, and was told that the testimony of the engineer who drew the map covered that. The matter was called to the attention of the trial court and the court heard the matter in the absence of the jury and denied the motion and thereafter properly instructed the jury to disregard it. While we, of course, feel that counsel in a case should at all times be solicitous to preserve not only the substance of justice, but every appearance of propriety, and should keep away from jurors during recesses and should have no conversation with them beyond the usual salutations, yet it is quite clear to us that there was no misconduct in this case. The incident was in fact precipitated by the juror who asked the question and it appears that counsel was merely endeavoring to answer the juror without seeming to be discourteous. He said nothing that could have given the juror any information which he did not already possess.

The judgment is affirmed.

Barnard, P. J., and Marks, J., concurred.

A petition for a rehearing was denied April 28,1942, and appellants’ petition for a hearing by the Supreme Court was denied May 25, 1942.