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



Civ. 12153.

Decided: February 17, 1943

Appelbaum & Mitchell and John Jewett Earle, all of Oakland, for appellant. Arthur Joel and Robert L. Dreyfus, both of San Francisco, for respondents.

Three plaintiffs brought separate actions to recover damages for personal injuries sustained in an automobile accident. The three actions were consolidated for trial and were tried by a jury. Judgments were entered against defendant Rodrigues, the driver, and defendant Transport Motor Company, the owner of the car in all three actions. The defendant owner appeals from the judgments entered against said defendant owner.

The actions were prosecuted against the defendant owner upon the theory that the defendant driver was operating the automobile with the consent of the defendant owner at the time the accident occurred. The defense of the defendant owner was based upon the claim that its purported consent was obtained by fraud and that, in any event, the subsequent deviation by the defendant driver from the purpose for which the defendant owner's original consent was obtained nullified any such consent even if such consent had been validly obtained in the first instance.

Considerable animosity between the defendants was manifested at the trial. The defendant owner claimed that while the defendant driver obtained its consent to use the car upon his representation that he was an intending purchaser, said defendant driver had no intent other than the criminal intent to obtain the car for the purpose of stealing the battery therefrom. During the trial the defendant driver made no attempt to defend against the claims of plaintiffs but confined himself to a defense against the claim of his codefendant regarding the claimed intent to steal. Counsel for the defendant driver admitted negligence and admitted that plaintiffs were entitled to verdicts against the defendant driver. He devoted his argument to convincing the jury that the defendant driver had no intent to steal and further to urging the jury to return verdicts against the defendant owner as well as against the defendant driver. In view of our conclusions regarding the subsequent deviation of the defendant driver from the purpose for which the defendant owner's original consent had been obtained, we deem it unnecessary to discuss the defendant owner's claims with respect to fraud in obtaining its original consent.

There was a slight conflict in the evidence concerning the express request made by the defendant driver in obtaining the defendant owner's original consent. The defendant driver testified that he requested the use of the car for the purpose of trying it out. The representative of the defendant owner testified that the defendant driver requested the use of the car for the purpose of showing it to his parents and obtaining their approval of his purchase of the car. This conflict is immaterial as the uncontradicted evidence of the defendant driver showed a subsequent deviation from either of said purposes.

The subsequent deviation phase of the defendant owner's defense presents a very unusual state of facts as shown by the uncontradicted evidence. The defendant driver was the owner of a 1939 car which had not been running well. He visited the defendant owner's establishment in the late afternoon and talked about purchasing a car. He testified that he did not intend to turn in his own car and therefore did not advise the defendant owner that he owned one. He left the establishment but returned shortly after dinner. On the return trip, he was accompanied by two companions. He parked his car at a point two or three blocks from the defendant owner's establishment, leaving his two companions with his car. He entered the establishment alone and arranged to use the defendant owner's car for one or the other of the above mentioned purposes. He did not take the car to his home to show it to his parents, although he passed within a few blocks of his home. He first drove the defendant owner's car to the place where his own car was parked and he then drove it some distance to a service station while one of the companions followed in the other car. The trip took about ten or fifteen minutes. At the service station the defendant driver removed the battery from the defendant owner's car and placed it near his own car at the service station. He also removed the battery from his own car and put it in the defendant owner's car in the place from which he had taken the defendant owner's battery. The defendant driver and his companions then started out in the defendant owner's car, using the defendant driver's battery therein. The accident occurred shortly thereafter.

The defendant driver was questioned at some length regarding his purpose in changing the batteries and driving the defendant owner's car equipped with his own battery. The testimony of the defendant driver on this subject follows:

“Q. Why did you take the battery out of this automobile? A. Well, my car––I usually kept it up pretty good, and it was missing, that is, when the motor would hit a certain spot it would start to cut out, and I changed the carburetor and spark plugs and distributor and condensor coil, and it seemed to do that. That was one of the reasons I was going to get rid of it and during the course of that evening somebody said possibly the battery would––when I was talking of getting rid of it and buying a new car, they said maybe that battery wasn't feeding enough amperage or something and that it possibly was the battery that was causing it to miss, and they didn't have a battery at Simas' that would fit my car and rather than go and make a deal without making sure it wasn't the battery, why, we decided I would try to––try the battery right then and there because it would have been awful silly––.

“Q. Which battery is that. A. Try my battery in their car because their car was running right, and if it still ran––.

“Q. What kind of a car did you have? A. A. '39 Ford.

“Q. What kind of a car did you take out? A. A. '40.”

The defendant driver denied that he had any intention of stealing the defendant owner's battery at any time. He further testified on the subject:

“A. I was trying my battery to see how it was going to react in their car, to see if that was what was making my car miss at high speed. * * *

“Q. Where did you go? A. Well, we went out to try to see if this other car would miss. We wanted to see––maybe that was what was wrong with my car.”

All the above quoted testimony was developed when the defendant driver was called as a witness for plaintiffs.

We may assume, as contended by plaintiffs, that the purpose of the defendant driver in removing the batteries was merely to try out his own battery in the defendant owner's car rather than to steal the battery of the defendant owner. It is obvious, however, from the testimony upon which plaintiffs rely that the trip, made after leaving the service station and on which the accident occurred, was made not for the purpose of trying out the defendant owner's car but was made solely for the purpose of trying out the defendant driver's battery. Such purpose was wholly foreign to any purpose for which the defendant owner's consent had been obtained, and the acts of the defendant driver, even in the absence of any intent to steal the battery, constituted a criminal offense. Vehicle Code, § 504, St.1937, p. 617. Plaintiffs suggest that they may rely upon certain presumptions of permissive use, citing Lanfried v. Bosworth, 45 Cal.App.2d 408, 114 P.2d 406, and Prickett v. Whapples, 10 Cal.App.2d 701, 52 P.2d 972, but the presumptions relied upon are the presumptions that a person is innocent of crime or wrong, (Code of Civ.Proc., § 1963, sub. 1), and that the law has been obeyed. Code of Civ.Proc., § 1963, sub. 33. The authorities cited have no application here as the uncontradicted testimony showed that the defendant driver had violated the law (Vehicle Code, § 504) and was using the car for a purpose entirely different from and beyond the purpose for which consent to the use of the car had been obtained.

We are of the view that the rules set forth in Henrietta v. Evans, 10 Cal.2d 526, 75 P.2d 1051, are controlling here. The court there said on page 528 of 10 Cal.2d, on page 1052 of 75 P.2d: “On principle, there is no fundamental ground of distinction between a limitation of time and one of purpose or place, in so far as permission is concerned; and it would seem clear that a substantial violation of either limitation terminates the original express consent and makes the subsequent use without permission.” It is not claimed here that the defendant driver had any permission, express or implied, to remove the defendant owner's battery from its car or to use the car for the purpose of testing the battery of the defendant driver, and the provisions of section 504 of the Vehicle Code created a limitation upon the purpose for which the defendant owner's original consent was given. We are of the opinion that the actions of the defendant driver constituted a substantial violation of that limitation, thereby terminating the original consent and making the subsequent use at the time of accident without the permission of the defendant owner.

In view of these conclusions, it becomes unnecessary to discuss the other points raised by the defendant owner.

The judgments against the defendant Transport Motor Company, a corporation, are and each of them is reversed.

SPENCE, Justice.

NOURSE, P. J., concurred.