PETERSON v. Grieger, Inc., a corporation, Appellant.*

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

Robert Edward PETERSON, a minor, by his Guardian ad litem, Russell H. Peterson, Plaintiff and Respondent, v. Ralph NEVES, Monty Levine, Michael Paul Leovich, Audley Cole, Grieger, Inc., a corporation, Defendants. Grieger, Inc., a corporation, Appellant.*

Civ. 24964.

Decided: May 17, 1961

Jarrett & Morgan, and Lee B. Wenzel, Los Angeles, for appellant. John P. Brown, Pasadena, for respondent.

This is an action for damages for personal injuries resulting from a collision of an automobile and a bicycle. In a jury trial, the verdict was in favor of plaintiff (rider of the bicycle) for $5,000. On a motion for a new trial, the judgment was reduced to $3,500. Thereafter, by nunc pro tunc order, the judgment was reduced to $2,700. Defendant Grieger, Inc., a corporation (owner of the automobile), appeals from the judgment.

On Saturday, January 25, 1958, about 6:45 p. m., William Grieger drove the automobile into the parking lot of a restaurant. Defendant Leovich, a 17-year-old boy, who was not employed at the restaurant or lot, and who was not a licensed driver, drove the automobile from the parking lot through an alley and upon a street which was about a block from the restaurant. He was proceeding toward another parking lot. The collision occurred while he was within an intersection of streets.

The asserted basis for liability on the part of defendant Grieger, Inc., was that Leovich was operating the automobile with the implied permission of said owner.

Appellant contends that the evidence does not support the verdict.

The restaurant building is approximately one-half block east of the intersection of Foothill and Rosemead Boulevards, and is on the south side of Foothill (adjacent to the sidewalk). Foothill extends east and west, and Rosemead extends north and south. The parking lot is paved and is on the west, south, and east sides of the restaurant building. The record does not show the dimensions of the parking lot. Photographs of the parking area west of the restaurant building were received in evidence. An estimate of the size of that area, based upon a reference to the photographs, is that said parking area (west of the building) is approximately 100 feet by 100 feet. It appears (as an estimate based on the photographs) that there were designated spaces for approximately 40 automobiles in the area west of the building. Of course, in addition to the designated or marked spaces in the west area, there were places in the aisles of the west area where many automobiles could be parked. Also, there was evidence that there were marked spaces in the south and east parking areas for approximately 20 automobiles. Also, there were places in the aisles of the south and east areas where many automobiles could be parked. The driveway, from Foothill Boulevard, into the west area of the parking lot is about 20 feet wide and is about 15 feet west of the restaurant building. A small shed, which apparently is for use of parking lot attendants, is near the west side of the driveway and is near the sidewalk.

An unpaved alley extends southerly from the southwest corner of the parking lot to Arboleda Street, which street extends east and west and is about 100 feet from the parking lot. Buff Street extends southerly from the intersection of the alley and Arboleda Street (i. e., Buff Street is opposite the south end of the alley—and traffic proceeding south in the alley could cross Arboleda and proceed south on Buff Street). There is another parking lot on the west side of Buff Street.

Defendant Cole testified that he operated the parking lot and performed chores about the restaurant for the privilege of keeping the ‘parking’ tips.

Mike Leovich, called as a witness by plaintiff, testified in substance, as follows: He knew several boys who parked cars at the restaurant and he went there several times a week, for two months preceding the accident, and visited with the boys. On many occasions when he was there, and while the boys were busy parking cars, Mr. Cole asked him if he would ‘drop a few cars down.’ That expression referred to the parking of automobiles farther ‘down on the lot or to parking them on a public lot west of Buff Street. At the request of Mr. Cole he had taken automobiles to the Buff Street lot ‘15 or 20’ times prior to the date of the accident. He was not paid for parking the automobiles, and was not ‘actually working’ on the night of the accident. On the night of the accident there was a heavy rain and, at the time Mr. Grieger drove into the lot, he (Leovich) was under the awning of the small shed which was west of the driveway. Also at the time Mr. Grieger drove into the lot, Mr. Cole was on the east side of the driveway (the side opposite the shed) and he gave Mr. Grieger a parking ticket. Grieger drove the automobile to the middle of the lot, and while he was getting out of the automobile at that place, Cole said: ‘Take the car and drop it to the lower lot.’ He (witness) ran down, got into the automobile and drove it to the intersection of the alley and Arboleda, where he stopped and looked to the left and then to the right. It was very dark, and he ‘couldn't see a thing.’ He turned slightly to the right and proceeded to cross Arboleda at a speed of five or ten miles an hour. When the front of the automobile was within a foot or two of the southerly curb of Arboleda, he saw a boy (plaintiff) on a bicycle going east on Arboleda. The boy was then about a ‘foot or two’ to the right of the right front fender of the automobile. He (witness) put his foot on the brake pedal, but his foot slipped onto the accelerator. Then he put his foot on the brake pedal, and as he ‘hit the brakes,’ the right front fender of the automobile struck the front tire of the bicycle. The automobile traveled one ‘carlength,’ passed over the bicycle, and stopped. The boy ‘landed’ to the right of the automobile. That was the first automobile he had moved that evening. On cross-examination, Leovich testified that he could not ‘exactly swear’ that Cole told him to ‘Take it [automobile] down to the far lot.’

Mr. Cole testified further that he never asked Leovich to park any cars for him; Leovich never worked in the parking lot; on the night involved here, Grieger drove into the lot a distance of approximately two car-lengths; he (witness) gave Grieger a parking ticket; while he (witness) was walking toward the rear of the restaurant building to get a car, he heard someone say, ‘Shall I pull it down?’; he did not recognize the voice at that time but he replied, ‘Yes, just pull it down’; later he found out that ‘the voice’ was Leovich; he did not tell Leovich to take the Grieger automobile to the ‘lower’ lot; he did not say anything to Leovich on that night concerning any automobile on the lot.

Mr. Grieger testified in substance, as follows: On the night of the accident he went to the restaurant for dinner. When he drove the automobile (which was owned by Grieger, Inc.) into the driveway of the parking lot, other automobiles were in front of him and he waited until those automobiles were moved. Then he drove into the parking lot a distance of approximately two car-lengths and stopped. Mrs. Grieger went into the restaurant, and he waited for an attendant to come to his automobile. He did not look toward the shed. Cole came to the automobile and gave him a parking ticket. After receiving the ticket, he got out of the automobile and ran into the restaurant. He left the automobile in charge of Cole to be parked. He did not give Cole or anyone permission to drive the automobile out of the immediate parking area around the restaurant. He did not see Leovich. He (witness) had gone to the restaurant on several previous occasions, and on those occasions the automobile had not been taken from the lot to his knowledge. His ‘knowledge was' that the only parking space the restaurant had was the area surrounding the building on the west, south, and east—‘that one lot and that one lot only.’ He did not have any intent or idea that the automobile would be taken off this parking lot. He did not give Cole or anyone permission for an unlicensed minor to drive the automobile. When he left the restaurant, about 9:30 p. m., he was notified that the automobile had been involved in an accident.

Defendants named in the complaint were Ralph Neves and Monty Levine (presumably owners of the restaurant), Leovich, Cole, and Grieger, Inc. At the commencement of the trial, plaintiff dismissed the action as to all defendants except Cole and Grieger, Inc. It was stipulated that, prior to the trial, Neves, Levine, and Monty & Ralphs Corporation, a corporation, had obtained from plaintiff a covenant not to sue in exchange for $800. The verdict was against Cole, and Grieger, Inc., for $5,000. The motion of Grieger, Inc., for a new trial was granted unless plaintiff would consent to a reduction of the amount of the judgment to $3,500. Plaintiff consented to such reduction. On motion of Grieger, Inc., the judgment was reduced further in the amount of $800, which represented the amount paid by other defendants. After such reductions, the amount of the judgment was $2,700.

Section 402, subdivision (a), of the Vehicle Code,1 which was in effect at the time of the accident herein, provides: ‘Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.’

As above stated appellant (owner of the automobile) contends that the evidence does not support the verdict. The argument on behalf of appellant is that the evidence does not show that appellant gave permission to Cole or anyone to drive the automobile upon a public alley or street; and that the evidence does not show that, at the time and place of the accident upon a public street, the automobile was being driven with appellant's permission. The evidence shows that, during a heavy rain, Mr. Grieger drove the automobile into the west area of the parking lot for a distance of approximately two car-lengths, received a parking ticket from Mr. Cole, and then went into the restaurant building. Mr. Grieger had been upon the lot on several previous occasions. The lot covered a large area and had the general appearance of being enclosed by a wall, fence, and adjoining buildings; and there was no evidence that any condition existed which would indicate to Mr. Grieger or anyone that the automobile would not be parked on the lot. There was no evidence that Cole or anyone told Grieger that the automobile would not be parked on the lot. The entrance to the unpaved or dirt alley at the southwest corner of the parking lot was rather inconspicuous and was more than 100 feet from the place where Grieger got out of the automobile. There was no evidence that Cole or anyone told Grieger that the automobile would be, or might be, driven into the alley or upon a street. There was no evidence, or any circumstance from which it could be inferred, that Grieger knew or should have known that any automobile which had been brought into the parking lot at any time had ever been driven into the alley or off the lot, or parked any place other than on that lot. It thus appears that the evidence, insofar as it relates to the conduct of Grieger, was merely that he drove the automobile into the lot, received a parking ticket, and went into the restaurant—he did not say anything to Cole or anyone. It is not claimed that Cole or anyone said anything to him. There was testimony, however, by plaintiff's witness Leovich (the non-employed, non-licensed, minor driver as to whom the action had been dismissed) that Cole told Leovich to drop the car to the ‘lower lot.’ It is to be noted that Leovich also testified that he could not swear that Cole told him to take the car to the ‘far lot.’ It is to be noted further (according to Leovich's testimony) that, at the time said statement allegedly was made, Grieger was in the middle of the lot (getting out of the car), and Leovich was under the awning of the small shed at the entrance of the lot, and Cole was also at the entrance on the other side of the driveway (opposite Leovich). In other words, according to testimony of Leovich, Grieger was 25 or 30 feet from Cole and several feet farther from Leovich when Cole allegedly made that statement. Even if such statement were made by Cole, there is no evidence indicating that Grieger heard it, or if he heard it he knew what it meant or knew that it referred to his car. According to testimony of Cole, he was going toward the rear of the restaurant building when he told someone to pull a car down. At that time Cole was several feet from Grieger and about 40 feet from Leovich. There was no evidence indicating that Grieger heard that statement, or that he knew what it meant or knew whether it referred to his car. It is to be noted that Leovich (plaintiff's witness) testified that such an expression relative to taking cars ‘down’ meant parking cars farther ‘down’ on the same lot or parking them on the Buff Street lot. Even if such an expression had that double meaning insofar as the lot attendants were concerned, and even if Grieger heard such an expression that evening, there was no evidence indicating that he knew that it meant that his car might be driven from that lot and upon a public alley and street to another lot which was a block away.

In Scheff v. Roberts, 35 Cal.2d 10, at page 12, 215 P.2d 925, at page 926, it was said: ‘Under such statute [Vehicle Code, § 402, subd. (a)], permission cannot be left to speculation or conjecture nor be assumed, but must be affirmatively proved [citation], and the fact of permission is just as important to sustain the imposition of liability as is the fact of ownership [citation]. See also Garmon v. Sebastian, 181 Cal.App.2d 254, 260, 5 Cal.Rptr. 101. In Rose v. Porter, 101 Cal.App.2d 333, at page 337, 225 P.2d 245, at page 247, it was said: ‘While it is a question of fact for determination of the trial court whether permission was given by the owner of a vehicle to its operator [citation] yet such finding must be based upon substantial evidence. * * * If a permissive use is prescribed in area or in time or purpose, a use beyond such time, area or purpose is not with the owner's permission.’

In the present case it is conceded, of course, that Grieger did not give express permission to drive the automobile. It is clear that Grieger gave Cole implied permission to drive the automobile for the purpose of parking it one the lot into which Grieger had driven it. The question herein is whether, at the time and place of the accident on a public street, the automobile was being driven with Grieger's implied permission. In summary, it may be said that Grieger drove the automobile into the large and apparently enclosed parking lot, received a parking ticket, and went into the restaurant; while on the lot he did not say anything to anyone and no one said anything to him; there was no sign or physical condition of the lot indicating that automobiles would be driven upon the street and parked at another place; there was no evidence indicating that Grieger heard anything that was said as between Cole and Leovich; there was no evidence that, if he heard anything they said, he should have understood therefrom that the automobile might be driven upon the street and parked at another location. It is apparent that the implied permission which he gave to Cole to operate the automobile was limited as to area and purpose, namely, limited to the area of the parking lot adjoining the restaurant and limited to the purpose of parking the automobile there. The automobile was operated beyond that area and for another purpose. It cannot reasonably be inferred from the evidence that, at the time and place of the accident on the public street, the automobile was being driven with the implied permission of the owner. The finding of the jury that there was such implied permission is not supported by substantial evidence. The evidence was insufficient as a matter of law to support a finding that at the time and place of the accident on a public street Leovich was operating the automobile with the implied permission of the owner.

The judgment as to defendant Grieger, Inc., is reversed.

FOOTNOTES

1.  Now Vehicle Code § 17150.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.