SOUZA ET AL v. CORTI ET AL

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District Court of Appeal, First District, Division 2, California.

SOUZA ET AL. v. CORTI ET AL.

Civ. 12131.

Decided: September 29, 1942

Van A. Neher, of San Francisco, and Phillips & Munck, of Oakland, for appellants. Myron Harris, William H. Older, and John Jewett Earle, all of Oakland, for respondents.

Plaintiffs sued to recover damages for injuries received in a collision of two motor vehicles. They joined as defendants Joseph Gigli, the owner of one of the vehicles, Art Gigli, his son, and John Corti, a friend of the latter who was operating the car at the time of the collision. The cause was tried by the court without a jury and judgment went for the plaintiffs against John Corti alone. The plaintiffs appeal from that portion of the judgment which denied them relief against the other two defendants.

There is no substantial dispute in the evidence, but we will state the essential facts in the light most favorable to respondents. Art Gigli borrowed the car from his father to go on a pleasure ride. The father gave him explicit instructions not to let anyone else drive it. The son had borrowed the car on numerous occasions in the past, but always with the instruction that he alone should drive it. Art Gigli took his friend John Corti to a night spot where they picked up two girls. The four decided to drive to another place for dancing. One of the girls to whom Art Gigli had become attached had a car of her own which she chose to drive. Art Gigli did not want to lose his girl or leave his car behind so he gave Corti possession to drive it to the other meeting place. On this drive the collision occurred and Corti's negligence is not disputed.

The question stressed on this appeal is the imputed negligence of the owner under section 402 of the Vehicle Code, St.1937, p. 2353, which reads in part: “Every owner of a motor vehicle is liable and responsible for * * * injury to person * * * resulting from negligence * * * by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner * * *.” The trial court found that “the said defendant John Corti at said time and place was driving and operating the said automobile owned by defendant Joseph Gigli wholly without the knowledge of, and without the consent or permission, express or implied, of the said defendant owner, Joseph Gigli.” It was also found that “at the time and place of the collision aforesaid the defendant John Corti was not acting as the agent, servant or employee of either or both of the defendants, Arthur Gigli and Joseph Gigli.”

It is apparent that the imputation of negligence as to the owner rests upon his permission, express or implied, to the use of the car by the one who was at the time operating it. This permission, or consent, is a question of fact, the proof of which is just as important as any other fact upon which recovery depends. When the trial court has found that such permission was not given no recovery can be had against the owner if there is any substantial evidence to support the finding. Here the evidence was direct and positive that such permission was not given. This is not controverted by appellants, but they contend that the trial court should have inferred that permission was given. But, an inference is a permissive deduction which may be drawn from the facts proved, and when the inference supporting the judgment is a reasonable one, and supported by substantial evidence, the function of the appellate court ends.

The authorities interpreting this section of the Vehicle Code are not in conflict. When the trial court or jury has drawn the inference against the claim of permissive use the finding has not been disturbed. Many of these cases are discussed in Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 77 P.2d 1059. Di Rebaylio v. Herndon, 6 Cal.App.2d 567, 44 P.2d 581, and Howland v. Doyle, 6 Cal.App.2d 311, 44 P.2d 453, 454, are cited with approval, particularly the portion of the latter opinion reading: “Section 1714 1/4 [now 402 of the Vehicle Code, St.1937, p. 2353] places upon the owners of automobiles a statutory liability which otherwise would not exist. Before this section can be applied, it must appear by the proof that the vehicle was used or operated ‘with the permission, express or implied, of such owner.’ The existence of such permission cannot be left to speculation or conjecture nor be assumed, but must be affirmatively proved as an essential element of the cause of action. Such proof must consist of facts and circumstances from which can follow the inference that the owner either expressly gave permission or that his acts and conduct were such that permission might be implied. Where the evidence does not warrant either of such inferences, section 1714 1/4 does not apply as a matter of law.”

Appellants rely upon Haggard v. Frick, 6 Cal.App.2d 392, 44 P.2d 447, and cases from other jurisdictions, which, at first glance, would appear to be in conflict. But these cases merely support the statutory imputation of negligence where the trier of the facts drew the inference that permission to use the vehicle had been given. They can have no bearing here where the trial court inferred and found to the contrary.

Appellants assert that Corti was acting as agent for Art Gigli in driving his car to the next stopping place because Art Gigli did not wish to leave his car behind. This also is a question of fact which the trial court found upon adversely to appellants. It is not contended that there is no evidence to support the finding––merely that there was evidence which would have supported a contrary finding. As we have said in reference to the first point raised, since there is substantial evidence to support the findings made, the function of the appellate court there ends.

The judgment is affirmed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concurred.