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

HENRIETTA et ux. v. EVANS et al.†

Civ. 11359.

Decided: May 27, 1937

Sarau & Thompson, of Riverside, Roy W. Colegate, of Los Angeles, and Frank L. Miller, of Banning, for appellants. Reay, Scharf & Reay, of Los Angeles, for respondents.

This is an appeal from a judgment in favor of plaintiffs after a trial before the court without a jury in an action to recover damages for injury to person and property.

Viewing the evidence most favorable to respondents, the essential facts are these:

On January 5, 1933, in order to have appellants, who were engaged in the business of selling automobiles at Beaumont, Cal., hold a 1931 Ford tudor sedan for him, D. E. Evans deposited $5 with them. The price of the car was $325, $30 to be paid in cash and the balance at the rate of $25 per month. On January 20, 1933, Mr. Evans, being employed at Desert Center, Cal., and unable to leave, asked a fellow employee, Mr. Randall, to take $25 to appellants in Beaumont and bring the Ford to him at Desert Center.

Mr. Randall, in compliance with this request, went to appellants' place of business in Beaumont, made the $25 payment, and after some discussion appellant Obernolthe told Mr. Randall that he could take the Ford to Mr. Evans at Desert Center and to instruct Mr. Evans to return it immediately to Beaumont and sign the papers evidencing the conditional sales contract. He also gave him a receipt, which read, “By Cash on car cont.” Mr. Randall took the automobile and early the following morning delivered it to Mr. Evans, together with the instructions received from appellant Obernolthe; whereupon Mr. Evans drove to Beaumont and finding appellants' place of business closed, continued to Colton, Cal., where he collided with an automobile in which plaintiffs were driving, injuries to plaintiff resulting.

This is the sole question presented for determination:

Was there substantial evidence to support the court's finding that the Ford automobile at the time of the collision mentioned, supra, was being driven with the express permission of appellants?

This question must be answered in the affirmative. We have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the trial court may have reasonably drawn therefrom to sustain the finding of fact mentioned above and each and every other material finding of fact upon which the judgment was necessarily predicated. We therefore refrain from further discussion of the evidence. Thatch v. Livingston, 13 Cal.App. (2d) 202, 56 P.(2d) 549; Koeberle v. Hotchkiss, 8 Cal.App.(2d) 634, 48 P.(2d) 104; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399.

Since the law is settled that the owner whose automobile is being operated by another with his permission is liable for damages resulting from the negligence of the operator (section 1714 1/4, Civ.Code, now section 402, Vehicle Code [St.1935, p. 153]) the conclusion reached by the trial court is correct.

The judgment is affirmed.

McCOMB, Justice.

I concur: CRAIL, P. J.