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District Court of Appeal, First District, Division 1, California.




Civ. 10190.

Decided: March 20, 1937

J. Hampton Hoge, of San Francisco (A. Dal Thomson, of San Francisco, of counsel), for appellant. George K. Ford and Simpson Finnell, Jr., both of San Francisco, for respondents.

The above–entitled actions involve injuries sustained by the plaintiffs in an automobile accident. The actions were tried together before a jury, and a verdict for each plaintiff was rendered.

The defendant, who has appealed, contends that the actions abated by reason of the death of the driver of the automobile; and that the refusal of an instruction offered by her constituted prejudicial error.

In each instance the plaintiff was riding in an automobile, operated by Milton D. Newman, which collided with an automobile owned by the defendant, which was being driven with her permission by J. R. Deasy. Deasy was joined as a party to the action and answered the complaint, but died before trial.

The sufficiency of the evidence to sustain the verdict is not questioned.

It was decided in Sayles v. Peters, 11 Cal. App.(2d) 401, 54 P.(2d) 94, that the liability of the owner of a car is joint and several with that of the driver, and that the death of the latter is not a bar to an action against the former. See, also, Broome v. Kern Valley Packing Co., 6 Cal.App. (2d) 256, 44 P. (2d) 430; Milburn v. Foster, 8 Cal.App. (2d) 478, 47 P.(2d) 1106; Pascoe v. Payne, 124 Cal.App. 528, 12 P.(2d) 1091.

The refusal to give appellant's offered instruction was not prejudicial as the matters therein were fully covered by other instructions.

We find no merit in the appeal, and the judgments are accordingly affirmed.


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