Souza v. Corti

139 P.2d 645, 22 Cal. 2d 454, 147 A.L.R. 861, 1943 Cal. LEXIS 195

• Court: California Supreme Court
• Decided: July 8, 1943
• Docket: S. F. 16866
• Status: Published

Opinions

SHENK, J.

This is an action for damages for personal injuries resulting from an automobile collision. Judgment was entered in favor of each of the plaintiffs against the defendant John Corti and in favor of the defendants Joseph and Arthur Gigli, father and son. The plaintiffs appealed from the judgment in so far as it is favorable to the defendants Gigli.

The appeal involves the construction, as applied to the undisputed facts, of section 402 of the Vehicle Code, the pertinent part of which is as follows: “Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. ...”

Joseph Gigli was the owner of a Dodge sedan. He housed the car in the garage at his home where he and his family, including Arthur and a younger son, resided. The keys were left in the car and members of the family were permitted to use it. The son Arthur conducted a service station at San Leandro. He had general permission to use his father’s car and had used it on an average of twice a week for a year and a half. On the evening of Saturday, July 6, 1940, Arthur loaned his own car to the younger brother. At a later hour Arthur desired to go out with his friend, the defendant John 'Corti, so he sought and obtained permission from his father to use the Dodge car. The father testified that Arthur asked him for the use of the car on that evening and that he granted permission to use it but with the admonition: “Don’t lend the car to anyone else. ’ ’ Arthur took the car and in company with Corti stopped at Rocca’s, a liquor dispensing establishment and dance hall. From there the two proceeded to a night spot known as Bruno’s where they met two girls with whom they had not theretofore been acquainted. Later they decided to return to Rocca’s and dance. Arthur suggested that the four go in the Dodge car. Arthur’s girl objected because she had a new Plymouth coupe with her and did not want to leave it behind. Neither did Arthur wish to leave his father’s car. In order to get the two cars to Rocca’s and to make sure the girls would show up, Arthur decided to ride with his girl in the Plymouth. Accordingly he handed the keys of the Dodge to Corti who agreed to take the other girl in that car and “follow” the Plymouth car to Rocca’s. The collision in which the plaintiffs were injured occurred on the return trip to Rocca’s when the Dodge car, driven by Corti, collided with the plaintiff’s car at the intersection of East 14th Street and Dutton Avenue in San Leandro. The negligence and liability of Corti is not disputed. The principal question is whether Joseph Gigli, the owner of the Dodge car, is liable in damages for the injuries sustained by the plaintiffs pursuant to the statute above quoted. He contends that he is not liable because he had not given express permission to Corti to drive the ear and that permission so to do may not be implied for the reason that he instructed his son Arthur not to lend the ear to anyone else.

The portion of the statute now under consideration was enacted in 1929 and was then included in section 1714 ¼ of the Civil Code (Stats. 1929, p. 566). Its constitutionality is not questioned. (See Sutton v. Tanger, 115 Cal.App. 267 [1 ], O’Neill v. Williams, 127 Cal.App. 385 [15 P.2d 879].) The statute defines the owner’s liability in eases where the principle of respondeat superior is inapplicable, in order to make him liable for the negligence of any person to whom he had expressly or impliedly given permission to operate his car, and thereby prevent him from escaping liability by saying that his car was being used without express authority or not in his business. (Bayless v. Mull, 50 Cal.App.2d 66 [122 P.2d 608]; Plaumbo v. Ryan, 213 App. Div. 517 [210 N.Y.S. 225].)

By a New York statute adopted in 1924 (New York Highway Law, 1924, ch. 534, sec. 282-e) liability was imposed on the owner similar to that prescribed by section 402 of our Vehicle Code. In Feitelberg v. Matuson, 124 Misc. 595 [208 N. Y. S. 786], the defendant owner permitted one Mishkin to use his car. The accident occurred while Mishkin and some of his friends occupied the car. The driver was not Mishkin but one of his party. After upholding the constitutionality of the statute the court said: “The defendant also claims that the plaintiff cannot recover for the reason that the person to whom the car was loaned did not drive the car. The statute says, however, that the owner should be liable for the acts of any person legally ‘using or operating the same. ’ The words are used disjunctively. The legislature drew a distinction between ‘using’ and ‘operating.’ To operate, as distinguished from use, signifies a personal act in working the mechanism of the car (Witherstine v. Employers’ Liability Assurance Corporation, 235 N.Y. 168, 172 [139 N.E. 229, 28 A.L.R. 1298].) As there stated: ‘ The driver operates the car for the owner, but the owner does not operate the car unless he drives it himself. ’ What was the purpose of adding the word ‘use’ unless it was meant to include the person who had the actual, though not physical, control of the ear, and who was constituted by the owner its master ad hoc. If the liability of the owner were limited to the acts of the operator, the statute would become a dead letter in most cases. Its evasion would be an easy matter. The statute must be interpreted in accordance with its verbiage. We cannot hold that ‘using’ and ‘operating’ are interchangeable or synonymous words. If the owner chooses to intrust his car to another person, he invests such person so long as he uses the car, with the same authority in regard to the management of the car which the owner has. That authority includes the right to select the operator. The statute so provides in unmistakable language.’’ The court in that case also said: “Of course, the liability of the owner ceases, when the borrower, in turn, gives the use of the car to a third party without the owner’s consent. ’ ’ That statement was obiter, and in making it the court was merely emphasizing the distinction, under the New York law, between use and operation.

In Grant v. Knepper, 245 N.Y. 158 [156 N.E. 650, 54 A.L.R. 845], Carucci, an employee of the defendant owner, was in charge of a truck as driver, accompanied by a salesman. He permitted the salesman, who was neither experienced, competent nor licensed as a driver, to operate the vehicle, while the driver rode on the running board. An accident occurred resulting in damage to the car of a third party. The defendant owner was held liable, first, on the common law liability for the negligence of the owner’s authorized representative. On a second ground the court, speaking through Cardozo, then Chief Judge, said at page 164: “Passing from common law to statute, we find the owner’s liability not merely continued, but extended. By Highway Law (sec. 282-e) ‘Every owner of a motor vehicle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.’ ‘Use’ as well as ‘operation’ may thus fasten liability upon the owner under the provisions of the statute (Fluegel v. Coudert, 244 N.Y. 393 [155 N.E. 683]). This truck was intrusted by the defendant to Carucci, his driver, to be ‘used’ in the transportation of persons and property to and from a stated point. It was in use for that purpose and no other when the accident occurred. The defendant expected, to be sure, that Carucci would operate the truck as well as use it. None the less, use without more would entail liability for negligence. The statute may be said in a general way to have brought about the same results as had been attained in some other jurisdictions without reference to any statute by the so-called doctrine of ‘the family automobile ’ (Fluegel v. Coudert, supra; Ferris v. Sterling, 214 N.Y. 249 [108 N.E. 406, Ann.Cas. 1916D, 1161], at p. 252). Only a narrow construction would permit us now to say that an owner placing a car in the care of members of his family to be used for their pleasure or for the family business would escape liability if wife or son or daughter should give over the wheel to the management of a friend. The ruling has been more liberal whenever the question has come up (Kayser v. Van Nest, 125 Minn. 277 [146 N.W. 1091, 51 L.RA.N.S. 970]; Thixton v. Palmer, 210 Ky. 838 [276 S.W. 971, 44 A.L.R. 1379] ; Ulman v. Lindeman, 44 N.D. 36, 41 [176 N.W. 25, 10 A.L.R. 1440]). Carucci did not abandon the car or its use when he surrendered to another the guidance of the wheel. He was still in charge of the truck, and was using it with the permission of the master, and even in the master’s business. He did not cease to use it, and use it with permission, though ' the method of operation may have been illegal or forbidden. We think the effect of the statute is to read into our law the rule of liability laid down in Geiss v. Twin City Taxicab Co., (120 Minn. 368 [139 N.W. 611, 45 L.R.A.N.S. 382]). The owner is now liable, though the negligence of the substitute may have been ‘sudden and unexpected’ (Ricketts v. Tilling, supra) if the act of negligence occurs during the life of the permitted use. Carueci was delinquent, but he was still the director of the enterprise, still the custodian of the instrumentality confided to his keeping, still the master of the ship.”

A law similar to the New York statute and to our own has been in effect in Michigan since 1915. A proviso contained therein ‘‘that the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner, ’ ’ has been upheld and construed in harmony with our present conclusion. (Kerns v. Lewis, 246 Mich. 423 [224 N.W. 647]; see also Kieszkowski v. Odlewany, 280 Mich. 388 [273 N.W. 741].) The court in the case of Kerns v. Lewis declined to read into the statute the restriction that the particular driver must be known by and his driving consented to by the owner. In Hawkins v. Ematinger, 211 Mich. 578 [179 N.W. 249], the provision of a statute declaring that the consent of the owner of a car to its use will be conclusively presumed when the same is driven by an immediate member of his family was held constitutional as within the police power of the state.

In the absence of statutory liability in the State of Washington the courts have adopted the ‘ ‘family use” doctrine to hold the parent responsible when a third person was driving even though the parent gave specific instructions that the third person should not drive the car. (King v. Cann, 184 Wash. 554 [52 P.2d 900].)

The courts of this state have not recognized the distinction made in such cases as Owen v. Gruntz, 216 App.Div. 19 [214 N.Y.S. 543], and Stapleton v. Hertz Drivurself Stations Inc., 131 Misc.R. 52 [225 N.Y.S. 661], where the car was turned over to a third person by the permittee. In the case of Haggard v. Frick, 6 Cal.App.2d 392 [44 P.2d 447], the defendant gave the use of a car to his son who was attending university, with the instruction not to permit anyone else to drive it. The son violated the instruction, and permitted another student to take the car and drive it for his own purposes. An accident occurred while the car was so being driven. The District Court of Appeal relied on several cases in this and other jurisdictions, including Grant v. Knepper, supra, in arriving at the conclusion that an owner is liable for the negligence of a person to whom his permittee has entrusted the automobile temporarily.

In Bayless v. Mull, 50 Cal.App.2d 66 [122 P.2d 608], in a discussion of the general principles, it was said at page 72, “that the legislature did not intend by the language it used to permit an owner to show any and all restrictions he may have placed on the use of his car and thus escape liability.” And again on page 75 the view of many courts was stated to the effect that ‘ ‘ as the owner can avoid the liability by refusing to permit the use of his motor car by another or procure insurance to protect him, he should not be permitted to avoid the consequences of the operator’s negligence and escape liability therefor by secret restrictions limiting the right to use the motor vehicle.”

The cases of Boland v. Gosser, 5 Cal.App.2d 700 [43 P.2d 559], and Howland v. Doyle, 6 Cal.App.2d 311 [44 P.2d 453], involved third party drivers, and the owner was held not liable. But in each of those cases the permittee was not given the general use of the vehicle. He had the car or truck to make certain repairs or tests, but turned it over to another for the purpose under circumstances which indicated that such delegation was not contemplated by the owner. However, if it may be said that there is anything stated in those cases which is not in harmony with the views expressed herein, it is necessarily disapproved.

In the present case the use which was being made of the borrowed car at the time of the accident was the use which was contemplated by the owner. Any secret restrictions imposed by Mm on the manner of its use do not negative the controlling fact that it was being used with the owner’s permission at the time of the accident. Violations of such restrictions may not be said to cause a revocation of the permission. Liability of the defendant owner in this case pursuant to section 402 of the Vehicle Code is therefore established. Cases such as Engstrom v. Auburn Auto Sales Corp., 11 Cal.2d 64 [77 P.2d 1059], Henrietta v. Evans, 10 Cal.2d 526 [75 P.2d 1051], and Di Rebaylio v. Herndon, 6 Cal.App.2d 567 [44 P. 2d 581], were concerned with violations of restrictions placed on the borrower as to the purpose for and the time within which the car was to be used. Further consideration need not now be given to those cases for the reason that we have here no question concerning the use of the car for the purpose or the period for which it was borrowed.

As to the liability of the defendant Arthur Gigli, the record shows that defendant Corti took possession of the Dodge car for the use, benefit and accommodation and under the direction of Arthur and for the purpose of taking it to Rucea’s for Arthur. Under these circumstances Arthur was the principal and Corti was his agent. The negligence of the latter was therefore imputable to Arthur. (Maberto v. Wolfe, 106 Cal.App. 202 [289 P. 218].)

The judgment in favor of the defendants Gigli is reversed.

Gibson, C. J., Curtis, J., and Carter, J., concurred.