FRANK F. FLORES, Administrator of the Estate of BEATRICE FLORES, Deceased, Appellant,
TUCSON GAS, ELECTRIC LIGHT & POWER COMPANY, a Corporation, Appellee, and CLAYTON F. TURNAGE, Defendant
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Mr. Geo. O. Hilzinger, Mr. Arthur A. Tannenbaum and Mr. Tom K. Richey, Attorneys for Appellant.
Messrs. Darnell, Pattee & Robertson, Attorneys for Appellee.
This is an action by Frank Flores, hereinafter called plaintiff, as administrator of the estate of Beatrice Flores, hereinafter referred to as the deceased, against Tucson Gas, Electric Light & Power Company, a corporation, hereinafter called [54 Ariz. 461] the company, and Clayton F. Turnage, whom we shall refer to as defendant.
Plaintiff's complaint alleges that the deceased was killed by reason of the negligent driving of an automobile by defendant, who was in the employ of the company at the time and acting within the scope of his employment. The company answered, admitting the ownership of the automobile and the employment of defendant, but denying that at the time of the accident defendant was acting within the scope of his employment.
Evidence was introduced, and at the close thereof, the court instructed a verdict in favor of the company, but left the issue of the liability of defendant to the jury. It disagreed on that point and was discharged from further consideration of the case, and judgment was entered in favor of the company, whereupon this appeal was taken.
The sole question before us is whether the court was legally justified in instructing the verdict in favor of the company. This depends upon whether there was evidence sufficient to go to the jury on the question of whether at the time of the accident which resulted in the death of deceased, defendant Turnage was acting in the scope of his employment for the company. If there was any evidence from which a reasonable man might have inferred that
he was so acting, the court erred in taking the case from the jury. If there was no such evidence, its action was correct. We, therefore, consider the evidence on that point.
The undisputed testimony was that the defendant was an employee of the company as an electrical service man, with regular hours of work from eight in the morning to five in the afternoon. The company owned a truck which it allowed defendant to take home at night to assist him in answering emergency service calls. He was instructed that he was not to use the [54 Ariz. 462] truck in any manner on his personal business and must keep it at home at all times when he was off duty, except when he or some other employee was answering an emergency call. If he left his home, he was instructed to leave the truck in the yard with the keys in it or else turn them in to the service department so that other employees would find the truck available for instant use if needed. Between 7 and 8 o'clock in the evening of July 23d, defendant took the truck and went to the Shamrock Cafe to see another employee of the company on personal business. During this trip he was not engaged in any company business, nor had he been called by the company during that day to use the truck at all after hours, nor had it any knowledge that he had so used or intended to use it. Was this evidence, coupled with the admission of ownership of the truck, sufficient to take the case to the jury on the issue of whether at the time of the accident defendant was acting in the scope of his employment for the company?
It is the position of plaintiff that under the rule as laid down in this jurisdiction in the cases of Baker v. Maseeh, 20 Ariz. 201, 179 P. 53, and southern Pac. Co. v. Nelson, 20 Ariz. 344, 180 P. 987, the physical possession of the company truck by defendant at the time of the accident raises the presumption that he was using it at the time on behalf of and in the service of the owner, and that notwithstanding the testimony above referred to, this presumption raises a conflict in the evidence sufficient to take the case to the jury.
It is the contention of the company that, admitting the possession of a car belonging to another raises a presumption that the possessor is using it on behalf of the owner, when direct and positive evidence is admitted contradicting this presumption, the latter disappears entirely, and if no other evidence is offered on behalf of plaintiff, there is no conflict of evidence [54 Ariz. 463] for the jury, and it is the duty of the court, under such circumstances, to instruct a verdict in favor of the owner of the truck. Narrowing down the issue to the vital point, the question is whether a presumption of law contradicted by evidence is in and of itself evidence. We had that precise question before us in the case of Seiler v. Whiting, 52 Ariz. 542, 84 P.2d 452, 454, and said:
"We consider next the question of presumptions. There has been much erroneous thinking and more loose language in regard to presumptions. We read of presumptions of law and presumptions of fact, of conclusive presumptions and of disputable presumptions. In truth there is but one type of presumption in the strict legal meaning of the word, and that is merely a general rule of law that under some circumstances, in the absence of any evidence to the contrary, a jury is compelled to reach a certain conclusion of fact. But a presumption so declared by the law is only raised by the absence of any real evidence as to the existence of the ultimate fact in question. It is not in and of itself evidence, but merely an arbitrary rule imposed by the law, to be applied in the absence of evidence, and whenever evidence contradicting the presumption is offered the latter disappears entirely, and the triers of fact are bound to follow the usual rules of evidence in reaching their ultimate conclusion of fact. As was once said, 'Presumptions may be looked on as the bats of the law, flitting in the ...