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District Court of Appeal, Fourth District, California.


Civ. 2856.

Decided: August 20, 1942

Luce, Forward, Lee & Kunzel, of San Diego, for appellants. Mills & Wood, of Los Angeles, for respondent.

Plaintiffs appeal from an adverse judgment which comes before us on the judgment roll alone. The following facts were found by the trial court: Claire E. Malloy, aged 19, sued herein as Clair Malloy, was at the time of the automobile accident in question, a co–owner with his father, Paul Malloy, of the automobile involved. The defendant Richard Malloy was also alleged to be a co–owner of the automobile. The case was dismissed as to him. The father, Paul Malloy, was killed in the accident. The plaintiff and appellant Marie Krum is the surviving widow of John H. Krum who, while riding in his car, was killed as a result of the collision. Plaintiff and appellant John Raymond Krum, who suffered injuries, is the son of the decedent John H. Krum and Marie Krum. Also killed as a result of the same accident was Robert Marvin Krum, another son of the plaintiff and appellant Marie Krum and the deceased John H. Krum. The accident occurred on the 1st day of January, 1941, on Highway 101, near San Onofre.

It was alleged in the amended complaint that the automobile was being driven by Paul Malloy “with the permission and consent of the said Clair Malloy and Richard Malloy.” This allegation was denied in the answer.

The court found that the accident was caused by the negligence of the decedent Paul Malloy and further found that the negligence of Paul Malloy was a proximate cause of the death of both John H. and Robert Marvin Krum; that at the time of the accident Claire E. Malloy and Paul Malloy were co–owners of the automobile; that Claire resided at the home of his father and was not present in the automobile when the accident herein mentioned occurred; that Paul Malloy, at the time of the accident, was operating the automobile in his own right as a co–owner and not upon the business of Claire E. Malloy; and that plaintiffs take nothing from the defendant Claire E. Malloy, as a co–owner of the automobile.

The question involved is this: Under section 402 of the Vehicle Code, St.1937, p. 2353, where a father and his minor son are co–owners of an automobile, which automobile is operated by the father in his own right as co–owner and not upon the business of the son, the son not being present in the automobile, is the son liable for the negligence of the father?

Section 402 of the Vehicle Code reads: “Liability of Private Owners. (a) 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, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.”

This section was originally section 1714 1/4 of the Civil Code. It imposed liability upon the owner of a motor vehicle not operated by the owner, but by some other person, with his consent. This liability was a radical departure from the common law. It has been held in California, prior to the enactment of section 1714 1/4 of the Civil Code, supra, that in the absence of statute, there was no liability upon the owner who loaned his automobile to another or permitted another to drive it. It is argued by respondent that since the statute imposes new and unusual liability which partakes of the nature of a penalty, it should not, at least, receive a construction favoring the imposition of the liability here claimed by appellants.

Appellants first cite section 4 of the Civil Code as declaring that the section here involved should be liberally construed. Each code contains a similar provision in reference to the construction of its provisions. § 4, Code Civ.Proc.; § 4, Pen.Code. No such provision is set forth in the Vehicle Code. Even though section 4 of the Civil Code may be held to be applicable to the provisions of the Vehicle Code, it must nevertheless clearly be shown that it was the object of the Legislature and the act itself, to fix a liability upon a co–owner of an automobile by virtue of his co–ownership regardless of other qualifications and exceptions. It is evident that the Legislature only intended that the owner of a car should be liable for the consequences of his own negligent driving and for the negligent driving of those whom he permits to drive it. In the main, the statute declares the rule that the owner of a car may choose his agents and employees, and may control possession of the vehicle. It is not evident that the Legislature intended to make each part–owner of a car liable for the consequences of the negligent operation of it by a co–owner or the other co–owner's agent or employee. In the first place, the foundation for such a rule does not exist, since a part–owner of an automobile may not choose the agents or employees of the other owner nor control possession of the car by the co–owner. In the second place, the language of the law, fairly interpreted, does not evidence a purpose to visit upon a co–owner the consequences of negligence committed by persons whose custody and possession of the car he may not and cannot control. It would therefore appear that it was not the object of the Legislature to attach liability upon a co–owner of an automobile under all conditions.

Section 4468 of the Political Code provides: “The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state.”

This section is to be considered in conjunction with the rule stated in Civil Code, section 4. Burlingame v. Traeger, 101 Cal.App. 365, 281 P. 1051. When read in conjunction with section 4 of the Civil Code, section 402 of the Vehicle Code, as now worded, is not repugnant to the rule of strict construction as applied to co–ownership. The Supreme Court has held in this respect, that section 402 of the Vehicle Code should be strictly construed. McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Weber v. Pinyan, 9 Cal.2d 226, 70 P.2d 183, 112 A.L.R. 407; Whitechat v. Guyette, 19 Cal.2d 438, 122 P.2d 47; Prager v. Isreal, 15 Cal.2d 89, 98 P.2d 729. See, also, Cook v. Superior Court, 12 Cal.App.2d 608, 55 P.2d 1227, and cases cited; Swing v. Lingo, 129 Cal.App. 518, 19 P.2d 56.

In Mittelstadt v. Kelly, 1918, 202 Mich. 524, 168 N.W. 501, 503, where the statute in that state imposing liability on an owner of an automobile was substantially the same as ours, the same question of liability of a co–owner was considered. That statute provided that “The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle * * *. Provided, 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. * * *”. In the Mittelstadt case a father and son together purchased a car, each contributing to the purchase price. It was registered in the son's name and it was contended that the father was a part owner. It was sought to fix liability upon the father as part owner. It was there held that the father, the co–owner, was not liable for several reasons, mainly because he could not control possession of the car by the co–owner and that the language of the law, fairly interpreted, did not evidence a purpose to visit upon the owner the consequences of negligence committed by persons whose custody and possession of the car he may not and could not control.

In the case of Leppard v. O'Brien, 225 App.Div. 162, 232 N.Y.S. 454, affirmed in 252 N.Y. 563, 170 N.E. 144, the facts were essentially as they are here. The defendant was the co–owner with his brother of an automobile. Each drove the car whenever he chose so to do. At the time of the accident, the brother not operating was at home and the car was not being used on the defendant's business. The court held the non–operating co–owner not liable under the New York statute which was, in substance, similar to section 1714 1/4 of the Civil Code of California. It was so held in Weber v. Pinyan, supra. In the case of Leppard v. O'Brien, supra, the court quotes at length (232 N.Y.S. page 458) from the Michigan case of Mittelstadt v. Kelly, supra, and quotes the Michigan statute. The New York court drew no distinction between the New York and Michigan statutes, as to the purpose and intent of the Legislature. It was there stated that “The object was to prevent an owner, who had given permission, express or implied, for the use of his car, from escaping liability by saying that it was not being used in his business. His permission for its use was made the basis of his liability. He was assumed to have the right to grant or withhold such permission. If it was being driven without his permission, or contrary to his express orders, no liability attached to him. * * *” [225 App.Div. 162, 232 N.Y.S. 456.]

The Leppard v. O'Brien case has been recognized and cited with approval in this state. Cook v. Superior Court, supra; Weber v. Pinyan, supra; Bradford v. Sargent, 135 Cal.App. 324, 27 P.2d 93. It has also been cited and approved in the following New York cases: Houlihan v. Selengut, 175 Misc. 854, 25 N.Y.S.2d 371, 374; Wadsworth v. Webster, 237 App.Div. 319, 261 N.Y.S. 670, 673; Glennie v. Falls Equipment Co., 238 App.Div. 7, 263 N.Y.S. 124, 131. It was also cited in Robinson v. Ebert, 180 Wash. 387, 39 P.2d 992, at page 994, where the court said: “* * * it was properly held that one of them [the brothers] was not responsible for injuries inflicted by the other in driving the jointly owned automobile. The brother held not liable was not in the car at the time of the accident, and it was not being used or operated in his business or in any joint enterprise.”

Appellants cite Parlov v. Lozina, 49 Ont.L.R. 299, in which case liability was based on a different statute and on the theory of joint ownership, but which did not take into consideration the additional facts found in the instant case that the co–owner was operating the automobile on his own business.

In the case of Buchel v. Williams, 273 Mich. 132, 262 N.W. 759, 761, cited by appellant, the court held that it was error to release the co–owner because the car was “being operated at the time with her knowledge and consent and for the benefit of the joint owners.” Such is not the finding here. Moore v. Noorthoek, 280 Mich. 431, 273 N.W. 758, is also cited by appellant, which case was decided upon the theory that consent by the co–owner was presumed to have been given under a statute which presumed consent where the car was driven by an immediate member of the family.

We believe the facts and statute involved in the Leppard v. O'Brien case, supra, were so similar to the statute and facts here involved that we need but quote therefrom to dispose of the issue here presented. The opinion refers to the ownership of the car as joint; that the understanding between the owners was that each of them should use it when he wanted it, and, as to this, the court said:

“That was not the permission contemplated by the statute in question. It cannot be assumed that their minds met on the subject–matter of this statute. The fair inference is that they simply expressed their understanding of their respective rights in conformity with the law relating to their status as joint owners. Their common understanding neither added to nor subtracted anything from the rights which the law gave them. Each of them, in the eyes of the law, had title and possession without the permission of the other, and used it in his own right; neither of them could so control possession and operation of the car as to deny permission to the other owner or his agents and employees.”

The court then said: “It nowhere appears in the statute that the Legislature intended that the vicarious liability created by its enactment should be visited upon one who could not prevent or control the use or operation of his car by withholding permission. * * * If the Legislature should deem it proper to impose such a penalty on joint ownership of an automobile, such a purpose should be clearly expressed in the statute.

By section 66 of the Vehicle Code of this state, St.1940, 1st Ex.Sess., p. 9, an “owner” is defined to be “a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents or pledges such vehicle.” Obviously, one of the incidents of ownership is the right of control of the vehicle (Leppard v. O'Brien, supra), and this Claire E. Malloy did not have as against his father Paul Malloy. The findings of the court negative any element of permission on the part of Claire E. Malloy. He was a minor, living at the home of his father, and manifestly could not control the conduct of his father. He was not present in the automobile and as his father was operating the automobile in his own right, and not upon the business of Claire E. Malloy, it must follow that the judgment of the trial court should be and is affirmed.

GRIFFIN, Justice.

BARNARD, P. J., concurred.