Coryell

This is an appeal by Clifford F. Reid, Inc., from a judgment entered after verdict of the jury against defendants Clifford F. Reid, Inc., a corporation, and E. D. Rosher, in an action to recover damages for injuries received by the plaintiff as the result of negligence of the defendants in the operation of an automobile. Defendant Rosher was the driver of the automobile at the time the plaintiff was injured. It was alleged in the complaint and there was evidence introduced to show that the plaintiff was requested by the defendant Clifford F. Reid, Inc., a corporation, to accompany the said driver, E. D. Rosher, on a trip in the automobile at the time of her injury. The question as to why and where she was injured and all the other questions raised as to the sufficiency of the evidence were decided by the jury upon evidence properly introduced in the trial of the case. The accident occurred on June 25, 1927. The judgment was rendered on the seventh day of February, 1929, and the law which appellant claims should be considered in weighing the liability—according to its brief—was not in effect until midnight of August 14, 1929. There is no merit in appellant’s contention that the…

I concur in the judgment. In addition to the matters discussed in the foregoing opinion there are some other points raised by appellant which per haps should be mentioned. I think that the evidence is sufficient to establish the fact that Rosher was both the ostensible agent and the actual agent of appellant, and not an independent contractor.

Appellant contends that the court erred in refusing appellant’s offered instructions No. 7, No. 4 and No. 16. If appellant had attempted to comply with rule VIII, by printing in its brief the other instructions given which bear upon the subject covered by the refused instructions, possibly these assignments of error would not have been urged upon the court, and some time would have been saved. Upon the point urged with respect to refused instruction No. 16, I think that the law concerning ostensible agency as applied to this case was properly stated in plaintiff’s instruction No. 1. (Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 421 [ 49 Pac. 559 ]; see, also, Barton v. Studebaker Corp., 46 Cal. App. 707 , at p. 721 et seq. [ 189 Pac. 1025 ].) Applying these decisions to the case at bar, I think that the court in said instruction…

I concur in the judgment. Although in accord with the conclusion reached by my associates, I cannot agree with that part of the main opinion herein to the effect that as part of the res gestae evidence was admissible as to what was said by defendant Rosher after the accident occurred, to wit: “It is my fault. I should not have been looking around.”

Definitions are of little assistance. According to my recollection, in the published opinion of one of our comparatively early justices of the Supreme Court of this state, in substance it was declared that “definitions of the term res gestae are as numerous as the various cures for rheumatism, and about as useful”. But what, to my mind, is of greater importance is the undeniable fact that by the greater weight of authority in this state evidence of declarations made, however soon after the completion of any act or transaction, are inadmissible as a part of the res gestae.

The opinion in the case of People v. Ah Lee, 60 Cal. 85, contains a most comprehensive explanation and illustration of the principles of law upon which the admissibility of evidence under the doctrine of res gestae depends. The precise point there at issue was…