Boone

This is an action for damages for the wrongful death of plaintiff’s adult son, resulting from a collision between decedent’s motorcycle and the rear end of a wagon loaded with farm implements, being driven by the defendant Angels along a public highway in Merced County. The defendant bank held a chattel mortgage on the wagon and its contents. It was plaintiff’s theory, in joining the bank as a defendant, that Angels was the agent of the bank. This theory is founded on the. fact that Angels, pursuant to directions from the bank and because of his financial inability to further carry on his farming operations was, at the time of the accident, proceeding to a warehouse for the purpose of there storing the wagon and its contents in order to preserve them as security under the bank’s chattel mortgage. The conclusion we have reached, and the fact that the jury brought in a verdict against the plaintiff and in favor of both defendants, makes it unnecessary for us to determine whether plaintiff upon the trial had satisfactorily established the relation of principal and agent between the defendants. For present purposes we shall assume, without deciding, that this relationship existed…

I am in accord with the judgment of affirmance. I do not, however, subscribe to the proposition that “habit” has the force of evidence only in eases where there are no eye-witnesses and is inadmissible in cases where there are such witnesses to an accident.

The court or jury should be permitted to weigh it against the testimony of one or any number of witnesses. Surely, if it is to be regarded as having any evidentiary force at all, it should prevail against the testimony of a single discredited witness. I see no reason, if it is to be received in courts of law as evidence, why its application should be limited to cases in which there are no eye-witnesses.