DILLON v. SUBURBAN MOTORS INC

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Court of Appeal, Third District, California.

Michael L. DILLON, et al., Plaintiffs and Appellants, v. SUBURBAN MOTORS, INC., Defendant and Respondent.

Civ. 22377.

Decided: March 27, 1985

Melvyn J. Coben and Thomas K. McGuire, Sacramento, for plaintiffs and appellants. Haight, Dickson, Brown & Bonesteel, Elliott D. Olson, Roy G. Weatherup, and Barry Z. Brodsky, Santa Monica, for defendant and respondent.

In this appeal we consider again, in a civil context, the circumstances of a tragic automobile accident in which John Raymond Eagles, Jr. (Eagles), was the culpable driver.   Three persons were killed and nine others injured in the collision between the Eagles' car and other vehicles.   We previously affirmed Eagles' conviction of three counts of vehicular manslaughter with gross negligence for the deaths resulting from the accident.  (People v. Eagles (1982) 133 Cal.App.3d 330, 183 Cal.Rptr. 784.)   We are here presented with the civil actions for damages brought by those persons who sustained serious injuries in the accident, ranging from total permanent disability to permanent partial disability.   The defendants are Eagles, his mother, Alta Eagles, and Suburban Motors, Inc. (Suburban), the dealership which sold to Mrs. Eagles the car driven by her son at the time of the accident.1  At trial plaintiffs proceeded against Suburban on theories of negligence predicated in violation of Vehicle Code section 14606 and common law negligent entrustment.

At the close of plaintiffs' cases on liability, the trial court granted Suburban's motion for nonsuit as to all plaintiffs and entered judgment accordingly.2  Plaintiffs appeal from this judgment.   We agree the nonsuits were improvidently granted and shall reverse.

I

 A motion for a nonsuit is a procedural method for testing the sufficiency of the plaintiff's evidence for submission of the case to the jury.   The granting of the motion removes the action from the jury's consideration and puts plaintiff out of court.   Because of the summary nature of this adjudication, “courts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper.   The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor.  [Citations.]  [¶] In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses.   Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.   The court must give ‘to the plaintiff['s] evidence all the value to which it is legally entitled, ․ indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor․’  [Citation.]”  (Campell v. General Motors Corp. (1982) 32 Cal.3d 112, 117–118, 184 Cal.Rptr. 891, 649 P.2d 224.)

II

Adhering to these rules we review the relevant facts as disclosed by the record.   In late December 1978, John Eagles, then 17 years of age, went to Suburban's place of business to look for a car to purchase.   A salesman from the fleet department assisted him.   According to this salesman the retail sales people considered Eagles a “waste of time” because he was young and by himself.

Eagles told the salesman he was interested in “something sporty, ․ something that a teenager would like, ․ that would look nice.”   Eagles specifically told him he wanted a “Trans Am”, which is a “performance” or high-powered version of a Pontiac Firebird.   Suburban did not then have this car, but the salesman took Eagles name and telephone number and advised he would call if he found something.

A few days later, the salesman called and told Eagles he had a Chevrolet Camero “Rally Sport,” which is similar to a Firebird.   Eagles came back to the lot and took the car for a test drive for one to two miles.   Because of his youth, and because Eagles did not have credit, the car was actually purchased in the name of his mother.   Both, however, were to contribute to paying for the car and Suburban was aware the car would be driven by Eagles at least part of the time.   Eagles made the decision as to the type of car purchased and drove it off the lot after personally taking possession.

At the time of the purchase, neither Eagles nor his mother possessed California driver's licenses, although each had a valid Missouri license.   At the time of the accident, Eagles had had his Missouri license less than a year.   According to Mrs. Eagles' credit application, she was employed in California and had been for the previous eight months.   During that period, in November 1978, she and Eagles returned to Missouri to bury her recently deceased husband and to dispose of their property.   They returned to California in early December 1978 with the intention of making California their permanent residence.   They indicated to no one at Suburban that they did not intend to remain and reside in California.

After Eagles expressed his intention to buy the car, he and his mother were taken to Suburban's finance manager to fill out credit and insurance applications.   The sales contract was made subject to credit approval.   If credit was not obtained, Suburban could “unwind” the deal and take the car back.   Eagles and his mother were each required to produce their driver's licenses as each was to be a driver of the vehicle.   Suburban's finance manager observed they were not California licenses.   Mrs. Eagles indicated to the finance manager her son would be using the car approximately 25 percent of the time.   The insurance application stated Eagles was 17 years old.   The finance manager made no inquiry as to the validity of the driver's licenses other than to ascertain the expiration dates.

At this time, it was the policy of Suburban when it obtained financing and insurance for the purchaser to deliver the car only when the purchaser obtained a California driver's license.3  Suburban did not require either of the Eagles to obtain a California driver's license prior to delivery of the car.   It advised only that their insurance would be cheaper if they had California licenses.

At no point did Suburban attempt to ascertain whether the Eagles were legal residents of California.   The policy at Suburban was that if it was felt a prospective purchaser might not be staying in California, a note of that fact would be made for the prospective lenders and placed in Suburban's files.   No note of this tenor was in Suburban's file.

The Eagles' credit application was rejected by the Bank of America in the first week of January 1979.   Suburban could have “unwound” the deal at this point.   Instead, it submitted an application to Ford Motor Credit Company, which agreed to finance the car.   The exact time of financing is uncertain, but a document by which Mrs. Eagles agreed to the Ford Motor Credit Company financing is dated February 1, 1979.

No witness could testify to the exact date on which the Eagles took possession of the car, but it appears to have been in late December 1978, some weeks before any credit approval was obtained.

Soon after obtaining the car, on January 2 or 3, 1979, Eagles went to the Department of Motor Vehicles to apply for a California driver's license.   Plaintiffs sought to prove that Eagles failed the written examination for a license but the court would not permit questioning on this issue unless plaintiffs could show Suburban had knowledge of this fact.   Plaintiffs offered into evidence a Department of Motor Vehicles information sheet filled out by Eagles when he applied for a license and which was found in Suburban's files and made an offer of proof that Eagles filled out such a document, took the examination on January 3, 1979, failed it, and did not again apply for a license before the accident.   The trial court denied admission into evidence of this document on the basis that it was undated and the mere fact of Suburban's possession of Eagles' application form did not support an inference that Suburban knew Eagles failed the examination.   Plaintiffs did elicit testimony from Eagles that he did not obtain a California driver's license before the accident.

At about midnight, on the night of the accident, February 11, 1979, Eagles was driving the Camaro south on Watt Avenue in Sacramento.   He and a friend were taking three girls home.   According to Eagles, he was travelling at speeds as high as 65 miles per hour.   The posted speed limit was 35 miles per hour.   He knew he was driving well in excess of the posted speed limit and could be subject to a traffic citation, but felt it was safe and proper to travel at that speed because the “flow of traffic” permitted it and “[e]verybody travels that fast at that time of night.”   He did not know the basic speed law.   At one point, Eagles went up to 75 miles per hour, in response to an occupant's comment that the car was “gutless”.   Other witnesses estimated Eagles's speed at about 70 miles per hour.

Eagles had slowed to between 50 and 60 miles per hour when he approached the intersection with El Camino Avenue.   As he neared the intersection, the traffic light in his direction was green.   He reached down to change a tape in the car's tape player.   When he looked up, he saw that a car in front of him was braking.   Because he was going too fast to stop without hitting the car, he swerved around it.   When he did so, he noticed other cars stopped at the intersection.   He also had to swerve around these cars.   He did not see that the traffic light was red.

Eagles noticed plaintiffs' car on El Camino Avenue proceeding easterly through the intersection.   He sped up and proceeded through the intersection in an attempt to miss plaintiffs' car.   This attempt was unsuccessful and Eagles' car collided with plaintiffs' car, killing two of its occupants and one of the occupants of Eagles's car and injuring plaintiffs.

A Highway Patrol Multidisciplinary Accident Investigation team reconstructed the accident.   According to their report, Eagles's car was travelling at approximately 62 miles per hour just prior to the collision.   Eagles was not under the influence of alcohol or drugs.

Prior to obtaining his Missouri driver's license, Eagles had no formal driving education or driver's training.   He lived in the country and for the most part drove a pickup truck.   At one point in 1978, Eagles drove from California to Missouri, accompanied by his mother.   He had driven automobiles for about three years before the accident.   He denied any previous accidents or traffic citations.

III

Plaintiffs assert reversible error:  (1) in the granting of the nonsuit;  (2) in excluding evidence that Eagles had applied for a California driver's license on January 2, 1978, had failed the license examination and that a copy of his application was in the files of Suburban.

Plaintiffs proceeded to trial against Suburban on two theories of liability:  (1) a presumption of negligence arising from a violation of Vehicle Code section 14606 and (2) common law negligent entrustment.

In its successful quest for a nonsuit, Suburban urged the trial court to rely on BAJI (California Jury Instructions) instruction No. 13.80 entitled “Negligent Entrustment of a Vehicle—Special Findings”, which provides in part:  “However, the failure to have an operator's license is not in and of itself evidence of the operator's incompetence as a driver.”   The trial court did in fact rely on that portion of instruction 13.80 in granting the motion for nonsuit despite the court's cognizance of the 1981 pocket part use note to BAJI citing Hartford Accident and Indemnity Co. v. El Karem Abdullah (1979) 94 Cal.App.3d 81, 156 Cal.Rptr. 254, for the holding that “[a] prima facie case of negligent entrustment is established where an automobile dealer loans a vehicle for a test drive to an unlicensed person without first making reasonable inquiries to determine that the person is licensed and that person by reason of driver incompetence proximately causes injury to another.”  (Cal.Jury Instns., Civ. (6th ed. 1981 pocket pt.) No. 13.80, p. 82.)   The use note further directed instruction 13.80 be modified to cover this situation.

Suburban, with uncommon simplism, states the essential issue is whether “mere knowledge that a vehicle will be driven in part by a third person who is licensed to drive in a state other than California [is] legally sufficient to establish a breach” of the duty imposed on a retailer to “not sell an automobile to one known to be incompetent to safely operate a motor vehicle.”   This misstates rather than states the issue.   The issue is more properly stated as whether a prima facie case of negligent entrustment of a motor vehicle by an automobile retailer is established by evidence that the retailer knew one of the buyers of the automobile who would make substantial use of the vehicle was a minor unlicensed to drive in the State of California.

Liability for negligent entrustment of a motor vehicle is not a new concept.   “ ‘[O]ne who places or entrusts his motor vehicle in the hands of one whom he knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for any injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness․' ”  (Syah v. Johnson (1966) 247 Cal.App.2d 534, 539, 55 Cal.Rptr. 741;  Allen v. Toledo (1980) 109 Cal.App.3d 415, 420, 167 Cal.Rptr. 270.)   Negligent entrustment has more often been predicated on such knowing entrustment to an incompetent person.   However, liability has not been limited to those cases where such a showing is made.   “The charge being that of negligence, the standard by which the conduct of the owner is to be measured is the general one based upon the care which an ordinarily prudent person would exercise under similar circumstances and the question whether a particular owner's conduct measures up to that standard is ordinarily a question of fact for the jury.”  (Owens v. Carmichael's U-Drive Autos, Inc. (1931) 116 Cal.App. 348, 350, 2 P.2d 580;  Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81, 91–92, 156 Cal.Rptr. 254.)

 Suburban urges it cannot be held liable because it no longer owned the car at the time of the accident.   Assuming title passed sometime in January or February prior to the accident, as contended by Suburban, this fortuitous event would not absolve Suburban of liability.   Suburban confuses vicarious ownership liability for the negligent conduct of a driver and direct liability for negligent entrustment.   In negligent entrustment, the defendant is not charged vicariously with the negligence of the driver but is charged directly with his own negligence in entrusting the car to one whom he knew or should have known created an unreasonable risk of harm to others.  (Syah v. Johnson, supra, 247 Cal.App.2d at p. 539, 55 Cal.Rptr. 741.)

 Retention of actual ownership of the vehicle is not a prerequisite for liability under the common law doctrine of negligent entrustment.   If a claimant's evidence demonstrates that the person (private owner, renter or seller of the vehicle) had actual knowledge or knowledge of facts from which that person should have known the purchaser or driver was unlicensed, such knowledge is sufficient to place a duty of inquiry as to such competency on such person.  (Johnson v. Casetta (1961) 197 Cal.App.2d 272, 17 Cal.Rptr. 81;  Owens v. Carmichael's U-Drive Autos, Inc., supra, 116 Cal.App. at p. 352, 2 P.2d 580.)

 The liability for damages proximately caused by the negligent entrustment continues as long as the original incompetence endures.   As stated in Johnson v. Casetta, supra, 197 Cal.App.2d at page 275, 17 Cal.Rptr. 81, “An intoxicated driver may become sober and an inexperienced driver may acquire experience.   Then such original incompetence could no longer be a proximate cause of an accident and, therefore, the liability of the seller on this theory would no longer exist.”

 Suburban is correct that Eagles' lack of a valid California driver's license is not prima facie evidence of his negligence in the operation of the vehicle.   But we are here concerned with Suburban's independent negligence in entrusting possession of the car to Eagles.   When an entrustor knows that the driver to whom he entrusts a vehicle has no valid driver's license, such knowledge is sufficient to put the entrustor on inquiry as to the driver's competency and qualifications.   It is then for the trier of fact to determine whether under the circumstances the entrustor was negligent in placing the car into the hands of the driver.  (Syah v. Johnson, supra, 247 Cal.App.2d at p. 545, 55 Cal.Rptr. 741;  Jones v. Ayers (1963) 212 Cal.App.2d 646, 657–658, 28 Cal.Rptr. 223;  Nault v. Smith (1961) 194 Cal.App.2d 257, 267–268, 14 Cal.Rptr. 889;  Shifflette v. Walkup Drayage etc. Co. (1946) 74 Cal.App.2d 903, 909, 169 P.2d 996.)

Under Vehicle Code section 12500, it is unlawful for any person, except those who are expressly exempted, to drive upon the highways of this state unless he or she holds a driver's license issued under the Vehicle Code.   A nonresident over the age of 18 years who has a valid license from another state of which he or she is a resident may drive in this state without obtaining a California driver's license.  (Veh.Code, § 12502.)   Upon establishing residence in this state, one may not drive for more than 10 days from that date without obtaining a California driver's license (Veh.Code, § 12505, subd. (a)).

A nonresident who is over the age of 16 but under the age of 18 and has a valid license from another state may not drive in this state without a California license for more than 10 days after entry, unless he or she has in his or her immediate possession a nonresident minor's certificate, a certificate issued by the Department of Motor Vehicles upon filing “proof of ability to respond in damages.”  (Veh.Code, § 12504, subds. (a) & (b)(2).)  Upon becoming a resident, section 12505 also applies to these persons.

A resident who is over the age of 16 but under the age of 18 may only obtain a California license upon satisfactory completion of approved courses in driver education and driver training.  (Veh.Code, § 12507.)

 Viewing the evidence in the light most favorable to plaintiffs, a jury could conclude that Suburban knew that neither Eagles nor his mother had a valid license to drive in this state when it turned the car over to them.   They had been in California for most of 1978 and Mrs. Eagles had worked here for at least eight months prior to the purchase of the car.   The return to Missouri was a temporary trip to attend the funeral of Eagles' father and to dispose of property.   They returned to California in late November or early December 1978 with the intention of making California their permanent residence.   This action combined with the intent to stay is sufficient to make them residents of this state and to preclude the conclusion that their presence was merely temporary.  (5 Ops.Atty.Gen. 79, 80 (1945).)   Suburban must have believed they were residents as, contrary to its practice, it made no note for potential lenders that they may be leaving the state.   By late December, when they purchased the car, the Eagles were well beyond the 10-day limit within which they could legally drive in California without a California driver's license and the 17-year-old Eagles was well beyond the period within which he could drive without having in his immediate possession a nonresident minor's certificate.

Suburban was put on inquiry as to Eagles' competency, experience, and qualifications to drive in this state.   It was for the jury to decide if under the circumstances of this case Suburban was negligent in entrusting the car to Eagles.   There is evidence from which a jury could conclude Suburban was not negligent—e.g., Eagles appeared to be a competent driver during the test drive—but that is not a determination for us to make.   We cannot conclude as a matter of law that Suburban was not negligent in entrusting a “sporty” car to a teenager who had little California driving experience, no California driver's license and no demonstrated ability to qualify for a California driver's license, its inquiry being limited to checking the expiration date of his Missouri license and taking him on a test drive for one or two miles.

 Suburban urges an inquiry would have revealed no incompetency on the part of Eagles other than the lack of a valid California driver's license.   But inquiry by Suburban would have revealed that Eagles was a teenager with little driving experience in California;  that he had never attempted to obtain a California driver's license and therefore had never demonstrated his ability to qualify as a driver in this state.   He had never received formal driver education or driver training.   He had been licensed in Missouri for less than a year.   Further inquiry at a time when Suburban still had the power to “unwind” the deal and retake possession of the car would have revealed Eagles failed to pass the written examination for a California license.4  Suburban failed to follow its own policy of not giving possession of purchased vehicles to persons without California driver's licenses.   It would not have been unreasonable for Suburban to simply ask Eagles if he had tried to obtain a California license and require him to do so if he had not.

IV

 Appellants further contend that violation of Vehicle Code section 14606 established a presumption of negligence by Suburban.  Section 14606 states:  “No person shall ․ knowingly permit or authorize the driving of a motor vehicle, owned by him or under his control, upon the highways by any person unless the person is then licensed for the appropriate class of vehicle to be driven.”   This section is intended to ensure that only properly licensed drivers will operate vehicles on the streets and highways of this state and is designed to protect the public in its use of them.  (Hartford Accident & Indemnity Co. v. Abdullah, supra, 94 Cal.App.3d at p. 92, 156 Cal.Rptr. 254;  Shifflette v. Walkup Drayage etc. Co., supra, 74 Cal.App.2d at p. 907, 169 P.2d 996.)   A violation of section 14606 establishes a prima facie case against a defendant in favor of a person who has been injured through the negligence of the unlicensed driver to whom the defendant entrusted the car.   It is then for the jury to determine whether the defendant was negligent under the circumstances in permitting the unlicensed driver to operate the car.  (Hartford Accident & Indemnity Co. v. Abdullah, supra, 94 Cal.App.3d at p. 92, 156 Cal.Rptr. 254;  Jones v. Ayers, supra, 212 Cal.App.2d at pp. 657–658, 28 Cal.Rptr. 223;  Nault v. Smith, supra, 194 Cal.App.2d at pp. 267–268, 14 Cal.Rptr. 889;  Owens v. Carmichael's U-Drive Autos, Inc., supra, 116 Cal.App. at p. 352, 2 P.2d 580.)

 Liability under Vehicle Code section 14606 is predicated in two factors:  (1) an ownership interest in the vehicle and (2) actual knowledge or knowledge of facts giving reasonable notice of lack of a license.   In Johnson v. Casetta, supra, 197 Cal.App.2d at pages 275–276, 17 Cal.Rptr. 81, in which a nonsuit in the opening statement was reversed, the court refused to extend the predecessor section of Vehicle Code section 14606 to encompass a vehicle seller's liability because the plaintiffs did not claim defendants had knowledge their buyer was unlicensed, only knowledge that he was an incompetent driver.   In gratuitous dicta, the court added “It should be noted, in passing, that the section does not prohibit the sale of a motor vehicle to an unlicensed person.   Many car buyers are not licensed to drive but have others, such as employees, drive.   The purpose of the section is to deter driving by unlicensed persons.”  (Id., at pp. 275–276, 17 Cal.Rptr. 81;  original italics.)

 The decisive factor in Johnson, supra, for rejecting liability under section 14606 is present in the instant case, the element of actual knowledge or knowledge of facts giving reasonable notice that one of the purchasers who would be a substantial user-driver of the vehicle was a minor, unlicensed to drive in California.   Nor do we find persuasive the dicta that section 14606 does not prohibit the sale of a vehicle to an unlicensed driver 5 as many car buyers are not licensed to drive but employ others to drive for them.   This may have had wide application in some circles in the halcyon days of the 1960's (Johnson emerged in 1961) but has little relevance to the present era in which great numbers of vehicles are sold by automobile retailers to great numbers of people who not only do not have chauffeurs but have scant of any knowledge of the locations of the Rolls Royce and stretch limosine agencies.

As to the ownership of interest requirement,6 possession of the car was apparently delivered to the unlicensed minor in December 1978, prior to any financing having been secured for the vehicle and prior to any documentation of the sale having been forwarded to the Department of Motor Vehicles, both of which events occurred in either January or February 1979.

 At the time of such delivery ownership remained in Suburban.   The question of how long the liability of the seller Suburban continued is no different than the length of time it continues under a theory of negligent entrustment.   It continues as long as the original incompetence of the driver.   At the time of the accident herein, Eagles had no valid driver's license.   The liability, if any, of Suburban continued through the unfortunate accident, but that is a factual determination for the jury, based on all the evidence before it.   We determine only that liability under Vehicle Code section 14606 is a viable theory of liability under the factual situation herein.

V–VI 7

VII

We conclude plaintiffs presented a prima facie case from which a jury could find Suburban not only violated section 14606 of the Vehicle Code but also negligently entrusted a vehicle to Eagles, whose subsequent negligent operation of the vehicle caused plaintiffs' injuries.   We do not speculate how a jury should decide, but simply conclude the jury should have the opportunity to make the factual decision under appropriate instructions in the law.  “ ‘[E]ach case must be considered on its own facts to determine whether the [situation] in toto justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of a vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.’  [Citations.]”  (Dillon v. Legg (1968) 68 Cal.2d 728, 742, 69 Cal.Rptr. 72, 441 P.2d 912.)

This case involves an entity “doing a volume business in motor vehicles with resultant heavy exposure on the part of the public to the risk involved.   We do not consider it unreasonable to require that such entities take adequate precautions with respect to the vehicles owned by them or in their temporary custody.   One such precaution involves requiring the production of evidence from a prospective user of competency to drive.”  (Hartford Accident & Indemnity Co. v. Abdullah, supra, 94 Cal.App.3d at p. 94, 156 Cal.Rptr. 254.)   The jury should decide in this case whether Suburban took adequate precautions.

DISPOSITION

The judgment is reversed with directions to permit plaintiffs to introduce evidence that Eagles failed to pass the written examination for a California driver's license.

FOOTNOTES

1.   The action brought by plaintiff Michael Dillon (Sacramento Super.Ct. No. 286923) was consolidated with the action brought by plaintiffs Stacie Denison, Dee Denison, Shannon Emory, Brian Emory, and John Twilling (Sacramento Super.Ct. No. 285244).

2.   Section 581c of the Code of Civil Procedure, as pertinent herein, provides:  “(a) After the plaintiff has completed his or her opening statement, or the presentation of his or her evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit․ [¶] (c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.”

3.   This evidence is from the deposition testimony of Suburban's sales manager and the salesman who sold the car to Mrs. Eagles.   On the witness stand, both testified that they were mistaken in their deposition testimony;  that any valid license is sufficient.   However, the jury could have reasonably disbelieved their trial testimony in this regard, particularly the sales manager's.   He was deposed twice and on each occasion said prospective purchasers for whom Suburban obtained financing and insurance were required to have California driver's licenses.   On the first occasion he specifically distinguished between California and out-of-state licenses.   In any event, we take as true the evidence most favorable to plaintiffs.

4.   In this regard, it was error for the trial court to exclude evidence that Eagles tried and failed to qualify for a California driver's license in early January 1979, even if it was proper to exclude the license application found in Suburban's file.   Superficially, such evidence may appear irrelevant as the liability, if any, of Suburban, under a theory of negligent entrustment, commenced when the car was delivered to Eagles' possession in December 1978.   But Eagles' failure to pass the California driver's license examination occurred within the time frame within which Suburban was empowered to cancel the contract and retake possession of the vehicle.   As such, it was probative evidence not only of the incompetence of Eagles to operate a motor vehicle prior to and at the time of Suburban entrusting the car to him but also of such incompetence continuing to the time of the accident.

5.   In Drake v. Morris Plan Co. (1975) 53 Cal.App.3d 208, 125 Cal.Rptr. 667, the court affirmed a judgment of dismissal entered after the sustaining of a demurrer without leave to amend as to the defendant financial institution that loaned the money which enabled the alleged incompetent, unlicensed, alcoholic purchaser-driver to purchase the vehicle from the co-defendant seller.   It was held that Morris Plan's participation in the sale was so minimal and restricted that no legal duty was created to protect other motorists on public highways from the purchaser's illegal use of his automobile.   The seller's liability was not at issue but in apparent response to some appellate contention that section 14606 was applicable the court cited to the Johnson court dicta, adding per se—“Vehicle Code section 14606 ․ does not per se prohibit the sale of a motor vehicle to an unlicensed driver.”  (At p. 214, 125 Cal.Rptr. 667;  italics added.)   This accomplishes no more than to intimate that under some factual settings, liability could be predicated on a violation of section 14606.

6.   In Roland v. Golden Bay Chevrolet (1984) 161 Cal.App.3d 102, 207 Cal.Rptr. 413 (hg. granted Jan. 30, 1985) the court concluded the ownership requirement precluded application of Vehicle Code section 14606 to a retail seller who made a cash sale and retained no ownership.

7.   See footnote *, ante.

CARR, Associate Justice.

BLEASE, Acting P.J., and COUZENS, J.**, concur.