BENTON v. SLOSS

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District Court of Appeal, Fourth District, California.

BENTON et al. v. SLOSS.

Civ. 4224.

Decided: August 10, 1951

McInnis & Hamilton, San Diego, John W. McInnis, San Diego, for appellant. Johnson & Johnson, San Diego, for respondents.

Defendant Jay C. Fetters was 19 years of age, living at home with his father in La Mesa, and had no driver's license. Defendant Sloss was in the used-car business in that city. On May 23, 1947, Jay visited the used-car lot and selected a 1935 Chevrolet owned by Sloss. Sloss required a down-payment of $100. Jay had only $75, which he gave to Sloss and agreed to bring in $25 at a later time. Sloss told him he ‘could take the car home and in the morning come back and we would fill out a contract’. Sloss made no inquiry as to Jay's age or whether he had a license to drive a car. Jay drove the car home and returned the next morning with it and the $25. When making out the purchase order Sloss discovered Jay was only 19 years of age and told him he could not sign the contract. He stated that Jay's father must sign it. Sloss testified that Jay was to return with the contract within one hour. When Jay returned home with the car on Saturday, the 24th, Jay's father saw it, phoned to Sloss, and informed him Jay was a minor, had no operator's license, had no driving experience, could not have the car, informed him the car was nothing but a wreck, and told him to ‘come and get’ it because the ‘kid had no business with it’. Sloss told the father he would not pick it up. The father then told the son to take it back as he would not sign the contract.

Jay testified he went back with the car on Saturday afternoon but Sloss was not there; that he went again to his place of business on Sunday morning and ‘I think he was closed’, so he went back home; that on Sunday evening he picked up plaintiffs and started for a ride towards Spring Valley, a near-by town. One Eldon was driving in another car. According to the testimony of the witnesses, the two drivers were ‘racing’ or passing each other on a two-lane highway in excess of 45 miles per hour. About the time Jay's car was passing the Eldon car, another car which was approaching him came ‘suddenly out of a dip’ and to avoid striking it Jay turned suddenly to his right to go in front of the Eldon car and between it and a car traveling immediately in front of the Eldon car. The testimony is that Jay was unable to blow a horn because the Chevrolet was not equipped with one; that the brakes were faulty, and that the right rear wheel grabbed or locked and the other wheels did not grab at all when the brakes were applied; that as a result, Jay's car careened across the highway and struck a pole, injuring plaintiffs.

The evidence shows that Jay had driven other cars on a few occasions without a license. Defendant Sloss testified that he took the Chevrolet in on a trade, drove it himself, found it to be in good mechancial condition at the time, and that the brakes operated satisfactorily.

Upon this evidence the court found generally that on May 23rd defendant Sloss knew that the automobile was out of repair, knew it was equipped with worn and defective brakes, and that it had no horn; knew that Jay C. Fetters was not authorized by the Motor Vehicle Department to operate a motor vehicle; that he was 19 years of age, that he was an incompetent driver of motor vehicles and was, at the time, incapable of safely operating a motor vehicle upon the public streets and highways of the state; that he delivered the car to Fetters for the purpose of having Fetters drive the car to his father to effect the sale of the motor vehicle; that after the refusal by the father to consent to the sale Sloss was notified of this fact but that he nevertheless authorized and permitted Fetters to remain in possession of the motor vehicle for the purpose of sale; that on the 25th of May, while defendant Fetters was acting as the agent for defendant Sloss in a contemplated sale of a motor vehicle plaintiffs became guest passengers of defendant Fetters; that at the time and place Fetters operated the motor vehicle at an excessive rate of speed and with a wilful, wanton, and reckless disregard of the probable consequences of his acts; that the collision was directly and proximately caused by the negligence of the defendant Sloss in entrusting the defective motor vehicle to an incompetent minor, and was also directly and proximately caused by the defective condition of the brakes upon the automobile and the lack of a horn; that it was also directly and proximately caused by the wilful misconduct of the defendant Jay C. Fetters. Judgment was rendered against both defendants in favor of plaintiffs in the sum of $2000 plus special damages.

On appeal defendant Sloss challenges the sufficiency of the evidence to support the findings in the following respects: (1) that the undisputed evidence establishes conclusively that defendant Jay C. Fetters was not the agent of defendant Sloss at the time of the accident; (2) that it conclusively shows that at the time and place of the happening of the accident Fetters was operating the automobile without Sloss' express or implied permission; (3) that the owner of the vehicle was not liable to guest passengers for the wilful misconduct of the operator of the car; (4) that the proximate cause of the accident was the wilful misconduct of the driver Fetters; (5) that the finding that the automobile involved had defective brakes, which condition was known to Sloss, is without support in the evidence; and (6) that the placing of the automobile in the hands of Fetters was not, in itself, a negligent act under the evidence.

In support of these contentions the appealing defendant cites such cases as Weber v. Pinyan, 9 Cal.2d 226, 70 P.2d 183, 112 A.L.R. 407; Berryman v. Quinlan, 29 Cal.App.2d 608, 85 P.2d 202; Caldwell v. Miller, 61 Cal.App.2d 1, 141 P.2d 745; McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; and Prager v. Isreal, 15 Cal.2d 89, 98 P.2d 729; which, in effect, hold that under section 403 of the Vehicle Code a guest may recover from the driver or any other person legally liable for the conduct of such driver only in case the injury resulted from the intoxication or wilful misconduct of the driver, and that liability under section 403 is not, under such circumstances, imputed to the owner of the car.

Plaintiffs concede this general rule and attempt to distinguish these cases from the instant case in this, that plaintiffs here are not relying on the imputed negligence of the driver of the car but upon the owner's own negligence in knowingly permitting an incompetent and unlicensed operator to operate the car when it was in an unsafe and dangerous condition, out of repair, and while equipped with wornout brakes. Defendant concedes that if third persons, other than guests, had been injured, Sloss might have been liable on the theory of imputed negligence to an owner, or possibly on the theory of his own negligence. He contends, however, that the instant case does not come within the purview of that statute for the reason that the undisputed evidence shows the plaintiffs to be guests.

Apparently plaintiffs, in their complaint, have endeavored to state a cause of action against the defendant car owner predicated upon certain specified acts of negligence and against the driver upon certain other specified acts constituting wilful misconduct. The trial court found that the specific acts of negligence chargeable to the defendant owner were true and that the collision was caused by the direct and proximate negligence of the defendant Sloss, as specified, and that the collision was also directly and proximately caused by the wilful misconduct of the defendant Fetters. It is therefore apparent, from the pleadings and the findings, that plaintiffs are not relying upon the imputed negligence of the driver of the car to obtain a recovery from the owner, but upon the owner's own negligence, as alleged.

Weber v. Pinyan, supra, citing Walling v. Rugen, 3 Cal.App.2d 471, 39 P.2d 827, and Taylor v. Joyce, 4 Cal.App.2d 612, 41 P.2d 967, indicates a distinction between these two theories of recovery. There it is said, 9 Cal.2d at page 237, 70 P.2d at page 189: ‘If an owner is himself guilty of negligence in knowingly permitting an intoxicated or incompetent person to operate his car, he may be liable for his own negligence in so doing—not for the tort of the operator, except for the special statute which imputes to him the negligence of the operator. * * * The clear purpose of this portion of the statute was to declare that a guest should have no right of recovery for injuries arising from negligence in the operation of the car. In short, therefore, we find the Civil Code section imputing to the owner liability for negligence and the guest law adopted at the same time declaring that he shall not be held liable for negligence to a guest.’

The court then concluded that the liability under the guest act was limited to acts of the owner or driver arising from the intoxication or wilful misconduct of the owner or driver, as the case may be, and that the owner who merely permits another to drive his car, where no other relation exists, is not liable under either statute for injuries to a guest arising from the intoxication or wilful misconduct of the driver. The guest law, sec. 403 of the Vehicle Code, as it now exists, provides that ‘No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, * * * has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury * * * of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.’ Walling v. Rugen, supra, approached this question but did not determine it.

In Mish v. Brockus, 97 Cal.App.2d 770, 218 P.2d 849, 851, the question was presented. In that action plaintiff guest brought an action against the driver, alleging wilful misconduct. She alleged general negligence against the owner, i. e., lack of brake fluid in the hydraulic brakes, and in permitting the driver to drive his automobile knowing that she was a reckless and incompetent driver. A verdict was rendered against both. The appellate court held the facts insufficient to constitute wilful misconduct and said since plaintiff ‘was a guest in the car neither Robbins (the owner) nor Miss Brockus (the driver) would be liable for her injuries unless wilful misconduct or intoxication on the part of the driver is proved.’ (Citing Vehicle Code sec. 403.) ‘Therefore no consideration will be given to the allegation of defendants' negligence * * *.’ No liability is created for the wilful misconduct or intoxication of the driver in a guest case, merely by virtue of ownership of the car. Weber v. Pinyan, supra; Sec. 403, Vehicle Code; Caldwell v. Miller, 61 Cal.App.2d 1, 141 P.2d 745; Smith v. Pope, 53 Cal.App.2d 43, 127 P.2d 292.

In Smith v. Pope, supra, 53 Cal.App. at page 48, 127 P.2d at page 295, this court said: ‘Prior to the enactment of any ‘guest statute’ in California, the driver of an automobile was liable to his guest for acts of ordinary negligence. This was the common law rule. * * * The overwhelming weight of authority in this country is to the effect that in the absence of statute, under the common law, a guest may recover for failure of the driver to use ordinary care. It has consequently been held that section 403 of the Vehicle Code (the guest statute) was but a restriction on a common law right, and being in derogation of a common law right, such a statute may be extended only so far as a strict construction of the language of the statute makes it imperative. * * * Therefore, only those persons who were guests within the definition adopted by the Legislature may be considered to have been deprived of the right to recover except for injuries due to the wilful misconduct or intoxication of the driver.'

The purpose of the enactment of section 403 (guest law) was to prevent recovery on account of mere negligence of a motorist by those persons who, on a highway, accept gratuitous rides in vehicles traveling there. Fairman v. Mors, 55 Cal.App.2d 216, 130 P.2d 448. The primary policy underlying these statutes is to prevent recovery for ordinary negligence by a guest in an automobile who has accepted the hospitality of the owner or driver. Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704. See, also, Stober v. Halsey, 88 Cal.App.2d 660, 199 P.2d 318; Berryman v. Quinlan, 29 Cal.App.2d 608, 85 P.2d 202; and Walker v. Bacon, 132 Cal.App. 625, 23 P.2d 520.

It would defeat the purpose of the guest law to hold that merely because an owner was not driving the car at the time, he would be liable for ordinary negligence to a guest, when if he were driving, he would not be liable to the guest for such ordinary negligence. Ohlson v. Frazier, 2 Cal.App.2d 708, 39 P.2d 429.

This court has held that the mere absence of an operator's license, under certain conditions, is not prima facie evidence of incompetency to drive a car. Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160. See, also, Wysock v. Borchers Bros., 104 Cal.App.2d 571, 232 P.2d 531. There is no evidence that defendant had knowledge of any such claimed incompetency until he was told by the father that the son was not licensed and had no driving experience. This knowledge came long after the son had been placed in possession of the car. It has been held that knowingly placing a car in the hands of an incompetent operator amounts to ordinary negligence, as distinguished from wilful misconduct. Kanananakoa v. Badalamente, 119 Cal.App. 231, 6 P.2d 338; Stephen v. Spaulding, 32 Cal.App.2d 326, 89 P.2d 683.

Whether the brakes on defendant's automobile would have been defective under ordinary driving conditions is not shown. The evidence shows that one of the brakes may have proved defective, traveling at the rate of speed and in the manner indicated. It is questionable whether defendant was obligated to anticipate this form of driving and that Fetters would be engaged in automobile racing with guests in his car. However, the question of defective brakes and the absence of a horn upon the car were only questions bearing upon ordinary negligence and come within the rule stated. 60 C.J.S., Motor Vehicles, § 403, p. 1023.

Plaintiffs further rely upon the theory that defendant Fetters was agent for defendant Sloss at the time and place of the accident and was engaged in a service to the owner and that accordingly the principal was liable to the guest for the acts of the agent, citing such cases as Sanford v. Grady, 1 Cal.App.2d 365, 36 P.2d 652, 37 P.2d 475; and Anderson v. Thacher, 76 Cal.App.2d 50, 172 P.2d 533. The evidence is insufficient to support any such finding.

Generally speaking, the law indulges in no presumption that agency exists. A party who alleges or relies upon agency has the burden of proving it. 3 C.J.S., Agency, §§ 314 and 315, pp. 252–253; Nofsinger v. Goldman, 122 Cal. 609, 55 P. 425. To recover against a principal upon the theory of respondeat superior, it is necessary for plaintiffs to establish: (1) that the driver was the agent of the defendant for some purpose; (2) that his use of the vehicle was a contemplated incident of his agency; and (3) that at the time of the collision he was operating the vehicle in the transaction of the principal's business. 2 Cal.Jur. Ten Year Supp. p. 492, sec. 315; p. 542, sec. 351; Lane v. Bing, 202 Cal. 577, 262 P. 317; 16 Cal.Jur. p. 1104, sec. 63. The fundamental principal of agency is that the agent must be acting for his principal at the time and place. Sec. 2295, Civ.Code. It affirmatively appears from the evidence that the purchaser was obtaining the signature of his father to the contract for the benefit of the purchaser. A principal is only liable for the agent's negligence where such negligence was committed in and as a part of the transaction of the principal's business. Sec. 2338, Civ.Code. It conclusively appears that Fetters was not so engaged at the time. Henrietta v. Evans, 10 Cal.2d 526, 75 P.2d 1051; Engstrom v. Auburn Auto Sales Corp., 11 Cal.2d 64, 77 P.2d 1059; Bradford v. Sargent, 135 Cal.App. 324, 27 P.2d 93; 60 C.J.S., Motor Vehicles, § 399(5), p. 1611. A judgment predicated upon a finding which is lacking in evidentiary support must be reversed.

Judgment against appellant Sloss is reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.