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


Civ. 11375.

Decided: June 23, 1937

Geo. B. Bush and Philip C. Farman, both of Los Angeles, for appellant. Parker & Stanbury and White McGee, Jr., all of Los Angeles, for respondents.

This is an appeal from a judgment in an automobile accident case in which the plaintiff's case against defendant Auburn Automobile Sales Corporation, hereafter called “owner,” depended upon an allegation and proof that it was the owner of the car and that the driver of the car was driving it at the time of the accident with the permission, express or implied, of the owner. The jury returned a verdict of $10,000 against the driver of the car. The court on motion of the owner directed the jury to return a verdict in the owner's favor, and judgment was entered on such verdict. On the issue of permissive use of the car the plaintiff in presenting his case to the jury relied upon proof or admission in the pleadings that the auto sales company owned the car at the time of the accident and upon the inference which reasonably follows that the driver of the car had permission to drive it. Phillips v. Cuccio, 5 Cal.App.(2d) 520, 42 P.(2d) 1050, and cases cited; Hoffman v. Lane, 11 Cal.App.(2d) 655, 660, 54 P.(2d) 477. When the plaintiff rested his case, the duty of advancing the evidence in denial of the permissive use shifted to the owner and defendant proceeded to advance such evidence by calling to the witness stand its salesmen and next its sales manager. The plaintiff put on no rebuttal testimony.

The sole question necessary for a decision is thus: Was the prima facie case, made by the plaintiff, overcome by the evidence advanced by the defendant, so that the court was justified in directing a verdict for the defendant?

Viewing the evidence in the light most favorable to the party against whom the verdict was directed, the following is a statement of it: The defendant driver presented himself at the salesroom of the owner as a prospective purchaser. He asked for permission to drive the car himself and show it to some relatives who were stopping at the Blackstone Hotel, a distance of 3 miles from the salesroom. There is a discrepancy in the evidence of the salesmen as to whether he was to be gone not to exceed an hour and a half or not to exceed two hours. He was granted permission to take the car away, to use it and to bring it back. Nothing was said in the conversation, in which the permission was granted, to the effect that if he were late in bringing the car back, he was not permitted to bring it back. He drove the car away from defendant's salesroom at 5 p. m. He did not return the car that night, and not until 4 o'clock the next afternoon. That night until 10 o'clock and the next morning the salesmen made an effort, time and time again without avail, to telephone the driver. But they did not disclose in the evidence what they wished to tell him, except that the sales manager, when notified next morning that the car was not in yet, told the salesman in charge of the sale “to get busy on it right away––to stay right on the deal.” That morning one of them went to look for the driver at his hotel. He waited there for the driver. He looked all over for the driver of the car, but he did not look for the car. (As late as 3:30 p. m. he had not thought to locate for his information either the motor number or the serial number of the car.) He returned to the salesroom before 11 a. m. “to see that he returned the car” and “to make the sale.” At 11 o'clock the telephone operator at the hotel telephoned that the driver was on the way to the garage. To this the sales manager said to the salesman: “Well, I hope he is telling you the truth he is on the way.” And he also said, “that it was all right as long as we knew he was there.”

The accident occurred at noon on a main highway between the town of Burbank and the Union Air Terminal, at a point outside the city of Los Angeles and at a distance of 12 miles from the salesroom. It was not until 12:30 that any attempt was made to locate the car. As late as 3 the owner and his salesmen had made no report to any one outside of their own firm, and not until 4 did they report the car as stolen. Almost immediately the car was returned and one of them telephoned the police station to pay no attention to the report of theft. When the car was returned, the driver was not accused of its theft. Quite to the contrary, the conversation was with regard to the sale of the car. He was pressed to purchase it. Not a word to indicate that he had returned the car without permission.

Ordinarily, this court does not set out the evidence at such length. But we are of the view that the judgment should be reversed. In such a case the court sets forth the reasons for its decision with particularity. Washko v. Stewart (Cal.App.) 67 P. (2d) 144.

When the rules applicable to a directed verdict come into operation, the evidence produced by the defendant and favorable to his cause is eliminated from consideration for the purpose of the ruling of the court. Smellie v. Southern Pacific Co., 212 Cal. 540, 552, 299 P. 529. “* * * all evidence in conflict with the plaintiff's evidence must be disregarded.” In re Estate of Flood, 217 Cal. 763, 769, 21 P.(2d) 579, 581.

It is true, as contended by the owner, that as against a proved fact or against a fact admitted, a disputable presumption has no weight, but where the defendant on his part after a presumption has arisen during the introduction of plaintiff's case undertakes to prove the fact to be contrary to the presumption, the general rule is that it is for the jury to say whether the fact has been proved. People v. Milner, 122 Cal. 171, 179, 54 P. 833, 837; Perry v. Paladini, 89 Cal.App. 275, 264 P. 580; Poncino v. Reid–Murdoch & Co., 212 Cal. 325, 298 P. 818; Pacific Portland Cement Co. v. Reinecke, 30 Cal.App. 501, 158 P. 1041. In such a case a fact is not a proved fact as against the inference merely because the defendant testifies to it. There are exceptions to this rule, but “such cases are exceedingly rare.” Smellie v. Southern Pacific Co., 212 Cal. 540, 552, 299 P. 529, 534.

The rule is otherwise if the evidence rebutting the presumption is introduced by the plaintiff himself, in which case it is “like an admission” (People v. Milner, supra) or if the presumption is dispelled by the very proof which otherwise would have raised it (Kish v. California S. A. Ass'n., 190 Cal. 246, 212 P. 27). In such event the presumption is not created at all. A failure to observe these distinctions may lead one to believe there is a conflict in the decisions.

In the application of the above rules no distinction is made between a presumption and an inference. Bushnell v. Yoshika Tashiro, 115 Cal.App. 563, 569, 2 P.(2d) 550, and cases cited. If a finding of fact is based on a reasonable inference, it is not the function of an appellate court to set it aside any more than it is its function to set aside any other finding supported by substantial evidence. Such a finding is as completely a finding based on substantial evidence as any other finding of fact. 2 Cal.Jur. 933 et seq., and note 6 on page 935. and see cases collected under 1 Cal.Jur. Ten–Year Supp. 582. Directed verdicts may not be made against substantial evidence.

The owner contends in reply that, “The evidence being undisputed and conclusive that Silkman [the driver] was not using the automobile with the permission of respondent Company at the time of the accident, there was no question of fact for the jury to decide and respondent was entitled to a directed verdict as a matter of law.” Unfortunately for defendant that very contention was determined adversely to him in the case of Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529. In that case such question was not an incidental one, but was the very question involved in a long and laborious consideration. The case is a landmark on the question. The court goes further than is necessary herein and says in effect that even if the evidence to dispel the presumption is offered during plaintiff's case, still if it is offered under section 2055 of the Code of Civil Procedure, the presumption must go to the jury, for the reason that such evidence is not really a part of plaintiff's case and that such evidence does not dispel a presumption in favor of plaintiff. “Our conclusion, therefore, is that the testimony of a witness called under section 2055 of the Code of Civil Procedure is not, when weighing it against a presumption to be considered, nor is it really, evidence of the party calling such witness, and that the evidence thus produced does not dispel a presumption contrary thereto, but in favor of the party calling such adverse witness. This testimony is, of course, evidence in the case and may be considered in determining the issues of the case upon the trial or final hearing by the court, or, if the case is before a jury, by the jury. When the action is before a jury, however, the duty of weighing this evidence is with the jury and not with the court upon a motion for a nonsuit or directed verdict.” Smellie v. Southern Pacific Co., 212 Cal. 540, at page 559, 299 P. 529, 537.

Furthermore, the defendant's evidence, which we have taken the pains to set forth, illustrates the necessity and value of the rule, to the end that the plaintiff may have his constitutional right of trial by jury. Under the facts and circumstances in evidence, the defendant owner after the driver was late with his car, put in much of his time and activity in an effort to get the driver to return the car. Also the evidence as to the limited permission came from interested witnesses. It was for the jury to say, under all the facts and circumstances in evidence bearing upon the question, including the inference, whether or not the permission was limited as claimed by defendant, and whether or not an implied permission had not been given to return the car, at least as against an innocent third person.

In support of his contention the defendant relies upon Crouch v. Gilmore Oil Co., Ltd., 5 Cal.(2d) 330, 54 P.(2d) 709, 711. But in that case the court clearly says: “In this case the direct uncontradicted evidence introduced in response to the prima facie case * * * 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.”

The owner contends that there are two cases in California which directly hold that no presumption of permission to drive arises from proof of ownership. He cites in this behalf, Bradford v. Sargent, 135 Cal.App. 324, 27 P.(2d) 93, and Howland v. Doyle, 6 Cal.App.(2d) 311, 44 P.(2d) 453. In the first case the son of the owner, upon whom plaintiff relied to pin permissive use on the owner, was not driving the car. The second case does not state the rule as claimed by the owner. It does say as quoted by defendant: “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 [Civ.Code] does not apply as a matter of law.” Howland v. Doyle, 6 Cal.App. (2d) 311, 315, 44 P.(2d) 453, 554. Certainly the inference to support a claim under section 1714 1/4 does not apply as a matter of law. Here is an opportunity for clear thinking.

Finally, the defendant calls our attention to the following language in the case of Di Rebaylio v. Herndon, 6 Cal.App.(2d) 567, 44 P.(2d) 581: “The mere fact that at the time of an accident one is driving an automobile belonging to another is not, of itself, sufficient to establish that the former was driving the car with the permission of the owner.” This is one of those cases in which the very evidence introduced by plaintiff, relied upon to justify the presumption, dispels it. The quotation is good law in the light of the facts of the case and is in line with the rules as stated above.

No reason is shown why the judgment should be reversed as to the other defendants.

Judgment reversed as to the defendant Auburn Automobile Sales Corporation and affirmed as to the other defendants.

CRAIL, Presiding Justice.

I concur: McCOMB, J.

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