ON REHEARING. (January 11, 1936.) A petition for rehearing was filed by respondents which may be summed up as challenging the correctness of the original opinion in holding that there was not sufficient evidence to sustain the verdict against appellant under the doctrine ofrespondeat superior, and that the court had not given consideration to the asserted presumption that one found in the employment of another is deemed a servant and not an independent contractor, graciously conceding that this presumption had not been particularly adverted to by counsel upon the first hearing.
The court granted a rehearing on two questions which it thought would focus the conflicting views and contentions as follows:
I. "Where it is established or conceded a party is working in some capacity for another, whether there arises a presumption that he is an employee and not an independent contractor?
II. "Whether the burden of proof is upon the party to the action asserting that the employment is that of an independent contractor and not that of a mere employee, even though the plaintiff's case must rest upon the proposition that the employment is not that of an independent contractor?"
Taking up the first question, respondent cites authority which supports the proposition under these phases *Page 258 that there is the presumption indicated in the question. (39 C.J. 52, sec. 28; 16 Cal. Jur. 1111, sec. 67; 13 Cal. Jur. 1041, sec. 17.) The presumption of relationship of master and servant exists where the alleged servant is working on the premises of the master. (14 Rawle C. L. 78, sec. 15; Simila v.Northwestern Improvement Co., 73 Wash. 285, 131 P. 831;Oklahoma City Const. Co. v. Peppard, 43 Okl. 121,140 P. 1084; Dibble v. San Joaquin Light Power Corp. et al., 47 Cal. App. 112,190 P. 198; Fulton Inv. Co. v. Farmers' Reservoir Irr. Co., 76 Colo. 472, 231 P. 61; Murrays' Case, 130 Me. 181,154 A. 352, 75 A.L.R. 720.) And where the alleged servant is not on the premises, but driving a vehicle belonging to the employer. (Hinds v. Department of Labor, 150 Wash. 230,272 P. 734, 62 A.L.R. 225; Dr. Pepper Bottling Co. v.Rainboldt, (Tex.Civ.App.) 40 S.W.2d 827, 66 S.W.2d 496;Commercial Credit Co. v. Groseclose, (Tex.Civ.App.)66 S.W.2d 709); and although the facts are none too clear, where he is neither on the premises nor using the owner's vehicle (Kingv. Hercules Powder Co., 39 Cal. App. 223, 178 P. 531).
Herein the alleged servant or employee was neither working on the asserted master's or employer's premises nor using his appliances, the motorcycle belonging, under a contract of sale from Rice, to Kirkman. The basis for this presumption as announced in the authorities is therefore weak herein, but for the purpose of this discussion only, conceding the correctness of this presumption does not completely solve the problem because we find the further rule, well supported by reason and authority that if the evidence produced by the party relying upon the presumption disputes or negatives the presumption, the presumption cannot avail in his favor. (King v. Hercules PowderCo., supra; Dibble v. San Joaquin Light Power Corp., supra;Gaffney v. Atchison, T. S. F. Ry. Co., 107 Kan. 486,192 P. 736; Mar Shee v. Maryland Assur. Corp., 190 Cal. 1,210 P. 269; Hanchett v. Wiseley, 107 Cal. App. 230, 290 P. 311;Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884,284 U.S. 640, 52 Sup. Ct. 22, 76 L. ed. 545; Smellie v.Southern Pac. Co., 212 Cal. 540, *Page 259 299 P. 529; Fortier v. Hogan, 115 Cal. App. 50,1 P.2d 23; Bushnell v. Tashiro, 115 Cal. App. 563, 2 P.2d 550;Peters v. Cal. Building Loan Assn., 116 Cal. App. 143,2 P.2d 439, at 444; Pitt v. Southern Pac. Co., 121 Cal. App. 228,9 P.2d 273; Friddle v. Southern Pac. Co., 126 Cal. App. 388,14 P.2d 568; Garrison v. Williams, 128 Cal. App. 598,17 P.2d 1072; Kerner v. Peacock Dairies, 129 Cal. App. 686,19 P.2d 283; Hirsch v. D'Autremont, 133 Cal. App. 106,23 P.2d 1066; Morris v. Purity Sausage Co.,2 Cal.App. (2d) 536, 38 P.2d 193; Hoffman v. Lasseff,110 N.J.L. 122, 164 A. 293.)
In Maupin v. Solomon, 41 Cal. App. 323, 183 P. 198, at 199, the per curiam opinion of the supreme court denying a rehearing following the decision of the district court of appeals analyzed a similar situation as follows:
"In denying the petition for hearing in this court after decision by the District Court of Appeal of the First appellate district, division 1, we desire to point out that respondent'sprima facie case was based solely on an 'inference,' and not on any 'presumption' declared by law. When we say that a certain inference is warranted by certain facts proved, we mean no more than that the jury is reasonably warranted in making that deduction from those facts. Section 1958, Code Civ. Proc. In this case the direct uncontradicted evidence introduced in response to the prima facie case as to the circumstances under which the employe of appellant was driving appellant's automobile was of such a nature as to leave no reasonable ground for an inference, based solely on the fact of appellant's ownership of the automobile, and the further fact that the person driving was an employe of appellant, that the driver was acting within the scope of his employment at the time of the accident. The verdict therefore was contrary to the evidence, and this is all we understand the opinion of the District Court of Appeal to decide.
"The application for a hearing in this court is denied."
This analysis is on all-fours in principle with the situation herein, holding to the effect, namely, as we now hold as we did in the original opinion, and no further, that there was *Page 260 not sufficient evidence to support the jury's conclusion that the relationship of master or employer and servant or employee existed, because as to the subject matter of the second question we may concede, without deciding, which we do not, that where a person asserts as a defense to an action as against the alleged master or employer for the alleged negligence of the servant or employee that the true relationship was that of independent contractor, the burden of proof will be on the defendant to establish such relationship, but nevertheless in the first instance the respondents alleged that the appellant herein was the employer or master of Kirkman and that Kirkman was its servant and employee; the burden of proof, therefore, as to this allegation rested upon appellant, and if plaintiffs' own evidence showed that the relationship was not that of master and servant then he of course did not make a prima facie case, and the defendant would be entitled to a nonsuit.
We did not hold in the original opinion nor do we now hold that the relationship was that of independent contractor, merely that plaintiffs' own testimony did not show the relationship to be that of master and servant, this being so because even though full effect is given the presumption contended for, the testimony of plaintiffs' own witnesses, Rice and Kirkman, overthrew the presumption. The original opinion herein is therefore adhered to.
Budge, Holden and Ailshie, JJ., concur.
Morgan, J., dissents. *Page 261