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Court of Appeal, Second District, Division 4, California.

Mildred SMITH, Plaintiff and Appellant, v. Austin T. SMITH, Defendant and Respondent.

Civ. 49717.

Decided: September 07, 1977

Toxey Hall Smith, Hollywood, Robert G. Gyger, North Hollywood, and Victor Jacobovitz, Los Angeles, for plaintiff and appellant. Spray, Gould & Bowers, Daniel O. Howard and Michael R. Brown, Los Angeles, for defendant and respondent.

Plaintiff Mildred Smith commenced an action against Austin Smith (her husband) and Maximo Medina to recover damages for personal injuries allegedly sustained in an automobile accident which occurred February 9, 1973. The complaint alleged: on that date, while plaintiff was riding in a car owned and driven by defendant Smith, such car collided with a car driven by defendant Medina; the collision, and the personal injuries thereby sustained by plaintiff, were proximately caused by the negligence of each of the defendants.

Defendant Austin Smith moved for summary judgment on the ground there was no triable issue of any material fact as between plaintiff and defendant in view of Vehicle Code § 17158, which provides in pertinent part: ‘No person riding in or occupying a vehicle owned by him and driven by another person with his permission has any right of action for civil damages against the driver of the vehicle . . . on account of personal injury to or the death of the owner during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver.’ Defendant's motion for summary judgment was supported by the deposition of plaintiff, plaintiff's answers to interrogatories and plaintiff's response to request for admissions propounded by defendant. (Code Civ.Proc. § 437c.) These showed: the car in which plaintiff was riding at the time of the accident was purchased with community funds of the parties, and was owned by plaintiff and defendant; at the time of the accident, defendant was not intoxicated, nor did he drive in a manner which would constitute ‘willful misconduct’; plaintiff denied that defendant was driving the car with her permission, adding that ‘no permission was required because Austin T. Smith was the manager of the community.’ Also attached to defendant's motion for summary judgment, and incorporated therein by reference, were certified copies of documents issued by the Department of Motor Vehicles showing that the car was registered to ‘Smith, Austin Thirel or Mildred Geraldine.’ Plaintiff's opposition to the motion was supported by those portions of her answers to interrogatories and her response to request for admissions which showed that the car was purchased with community funds and that plaintiff did not give defendant permission to drive the car on the date of the accident.

The trial court granted defendant's motion for summary judgment. Accordingly, judgment was entered in favor of defendant and against plaintiff, dismissing the action as to defendant. Plaintiff appeals from the judgment.

Defendant argues that summary judgment in his favor was proper under Schwalbe v. Jones, 16 Cal.3d 514, 128 Cal.Rptr. 321, 546 P.2d 1033 (1976). There, the Supreme Court upheld the validity of Vehicle Code § 17158 against an equal protection attack, stating (pp. 519–520, 128 Cal.Rptr. p. 324, 546 P.2d p. 1036): ‘The owner's right to direct and control the driver when he allows another to drive his car and himself rides as a passenger distinguishes him from the nonowner-passenger not in terms of his ability to exercise effective control but in terms of his standing to seek recovery for injuries which he sustains due to the ordinary negligence of the driver which he has selected. . . . The Legislature might reasonably have conclued that the owner of an automobile who, rather than driving himself, selects another and allows him to drive, subject to the owner's right to direct and control such driving, should not be permitted to recover when the ordinary negligence of that driver results in injury to the owner.’ (Emphasis in original; footnote omitted.) Under Vehicle Code § 17158, a person injured while riding as a passenger in a car owned by him and driven by another is precluded from recovering damages for ordinary negligence against the driver only if the latter was driving with the permission of the owner. In Schwalbe the court did not reach the question presented in the instant case, i.e.: for the purpose of § 17158, where a car is owned by a husband and wife, need one have the permission of the other to drive the car and, if so, does such permission necessarily follow, as a matter of law, from the fact of coownership?

Plaintiff contends that the car was community property of the parties and therefore defendant did not need plaintiff's permission to drive it because, under the law in effect at the time of the accident, the husband had the exclusive right to manage and control the community property. (See Civ.Code § 5125, prior to its amendment by Stats.1973, ch. 987, § 14; Cox v. Kaufman, 77 Cal.App.2d 449, 452, 175 P.2d 260 [1946].) However, the form in which title to the car was held (Smith, Austin Thirel or Mildred Geraldine) raises a presumption that plaintiff and defendant owned the car as tenants in common, not as community property. (Civ.Code § 5110; Cooke v. Tsipouroglou, 59 Cal.2d 660, 662, 665–667, 31 Cal.Rptr. 60, 381 P.2d 940 [1963].) It is true that the form of the instrument under which a husband and wife hold title is not conclusive as to the status of the property (Socol v. King, 36 Cal.2d 342, 345, 223 P.2d 627 [1950]), and that property acquired by them as tenants in common may be shown to be actually community property according to their intention, understanding or agreement. (See Tomaier v. Tomaier, 23 Cal.2d 754, 757, 146 P.2d 905 [1944]; Lovetro v. Steers, 234 Cal.App.2d 461, 468, 44 Cal.Rptr. 604 [1965].) In opposition to the motion for summary judgment, plaintiff presented no facts showing any intention, understanding or agreement of the parties that the car was community property; she showed only that the car was purchased with community funds. Such evidence alone was not sufficient to overcome the presumption of tenancy in common created by the form in which title to the car was held by the parties. (See Gudelj v. Gudelj, 41 Cal.2d 202, 212, 259 P.2d 656 [1953].)

Where husband and wife do not own a car as community property, but are coowners thereof, the husband, in order lawfully to have the exclusive usage and possession of the car for a time, needs the wife's permission, express or implied. (Wilcox v. Berry, 32 Cal.2d 189, 190–191, 195 P.2d 414 [1948]; Caccamo v. Swanston, 94 Cal.App.2d 957, 963, 212 P.2d 246 [1949].) In the absence of other evidence on the issue, but upon proof of coownership and use of a vehicle by one coowner, an inference normally arises that the coowner consented to such use. (Bruce v. Ullery, 58 Cal.2d 702, 712, 25 Cal.Rptr. 841, 375 P.2d 833 [1962].) But this inference is not conclusive. ‘[I]t is a question of fact in cases of co-ownership, as it is in cases of single ownership, whether the operation of an automobile is with or without the consent, express or implied, of an owner who is not personally participating in such operation. The mere fact of co-ownership does not necessarily or conclusively establish that the common owners have consented to any usage or possession among themselves of a type for which permission is essential.’ (Krum v. Malloy, 22 Cal.2d 132, 136, 137 P.2d 18, 20 [1943].)

Summary judgment is proper only ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ.Proc. 437c.) Defendant, in support of his motion for summary judgment, showed that plaintiff and defendant were coowners of the car driven by defendant in which plaintiff was riding as a passenger, at the time of the accident. However, proof of coownership was not sufficient to establish that defendant was driving with plaintiff's permission, express or implied. Indeed, the papers supporting the motion showed that plaintiff denied defendant was driving with her permission. Thus, a triable issue as to the material fact of permission was presented, making it improper to grant the motion for summary judgment.

The judgment is reversed.

DUNN, Associate Justice.

KINGSLEY, Acting P. J., and JEFFERSON, J., concur.

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