MILGATE ET AL v. WRAITH (1941)

This is an appeal by Frank E. Milgate, one of the plaintiffs, from a judgment in favor of defendant.

The complaint set out three causes of action, the first seeking damages for personal injuries to Doris Milgate, the minor daughter of appellant; the second, alleging Frank E. Milgate was the owner of the automobile which was at the time being driven by Hugh Cunningham and in which Doris Milgate was a passenger, sought to recover damages to the car, and the third cause was upon behalf of Cunningham, the driver, for personal injuries suffered by him. By an amendment to the complaint appellant claimed additional damages for the hospital and medical services rendered the daughter.

Factually it appears Frank E. Milgate, the father of Doris, loaned his automobile to Hugh Cunningham, who took Doris Milgate riding in the car. On this occasion the car collided with a car driven by Lawrence Wraith, the defendant, injuring Miss Doris Milgate and causing damage to the Milgate car.

Judgment was rendered in favor of Doris Milgate for personal injuries suffered by her, but relief was denied Frank E. Milgate and Hugh Cunningham.

As to the claim of Frank E. Milgate, the court found he was not entitled to recover a judgment against Wraith for damages to his car or for money expended for medical, surgical and hospital treatment of Doris Milgate, because of the contributory negligence of Hugh Cunningham, which was imputed to plaintiff Frank E. Milgate, and denied a judgment in favor of Cunningham because his negligence contributed to the accident.

The evidence justified the conclusion of the trial court that both drivers were negligent. It also appears that Cunningham, the driver of the Milgate car, was using the car for his private use in the absence of plaintiff Milgate, and not for the benefit of nor upon the business of Milgate.

The question as to whether the negligence of the permissive user of an automobile is imputed to the owner and precludes a recovery of damages by such owner arises by virtue of section 402 of the Vehicle Code as amended in 1937, St.1937, p. 2353.

The trial court held that the negligence referred to in this section should be construed to include contributory negligence and should bar all recovery by the owner of the car, basing that conclusion upon the clause of that section “and the negligence of such person shall be imputed to the owner for all purposes of civil damage”.

Subdivision (a) of section 402 of the Vehicle Code, in full, provides: “402. Liability of Private Owners. (a) 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.”

The situation here presented is similar in many respects to that in Mills v. Gabriel, 259 App.Div. 60, 18 N.Y.S.2d 78, and affirmed in 284 N.Y. 755, 31 N.E.2d 512, determined after the trial of the case at bar, and which disapproved the rule laid down in Darrohn v. Russell, 154 Misc. 753, 277 N.Y.S. 783, and Renza v. Brennan, 165 Misc. 96, 300 N.Y.S. 221, upon which the able trial judge in the instant case relied in part for his conclusions. The court in the Mills case, supra, pointed out that under the common law the owner, under such circumstances, was not liable for damages arising from the negligent act of the operator of his car, nor under the common law was the negligence of the driver imputable to the owner when the car was being operated with his consent, but in his absence and not on his business.

However, by section 59 of the Vehicle and Traffic Law of the State of New York, the common law was changed by the following section: “§ 59. Negligence of operator other than owner attributable to owner. Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner. * * *”

By this provision the owner was made liable for the negligence of a person legally operating the car with the permission, express or implied, of the owner, but in the Mills case, supra, it was held the statute did not change the common law rule respecting the owner's right to recover from third persons under such circumstances, “nor”, the court further said [259 App.Div. 60, 18 N.Y.S.2d 80], “may it be invoked for the purpose of imputing the operator's negligence to the owner. It is applicable for that purpose only in actions brought by third persons against the owner. * * * Gochee v. Wagner [[[[257 N.Y. 344, 178 N.E. 553.] While we recognize there are a number of cases to the contrary, we do not approve them. It is suggested that if the statute does not apply, then the owner of each vehicle may recover against the other for property damage if both operators were bailees at the time of the accident, even though both were negligent. This was always the rule at common–law. If the statute operates illogically or unjustly, it is for the legislature and not the courts to extend its scope.”

In the earlier New York case of Nannes v. Ideal Garage et al., 150 Misc. 522, 269 N.Y.S. 777, 781, the car of plaintiff while being driven by another with his permission but in his absence, was involved in a collision with the car of defendant. There, as also pointed out, prior to the enactment of section 59 of the Vehicle and Traffic Law of New York, the owner of a vehicle was not liable for negligent injury caused by its operation by another, unless at the time it was being used on his business. Since the enactment of that statute, the court said liability was not dependent upon use or operation by a servant in the business of a master, but depended only upon legal use with the permission or consent of the owner. Due to the fact that the driver to whom the owner had entrusted his car was often financially unable to respond in damages, the innocent party was too frequently without redress, so this statute was enacted to protect such third party. It was intended to broaden the liability of the owner who had entrusted the use of his car to another, but was not intended to restrict the liability of an owner whose motor car may have caused the injury. By its terms the statute was limited to the liability and responsibility of an owner for injuries resulting from the negligent operation of his car. It imposed a new rule of liability for injury by the owner's car; it did not purport to lay down any new rule for damage to the owner's car.

A borrower of a car is neither an agent nor a servant of the owner. As the court in Nannes v. Ideal Garage, supra, said, quoting from Gochee v. Wagner, 232 App.Div. 401, 250 N.Y.S. 102 (which case was, in 257 N.Y. 344, 178 N.E. 553, reversed upon other grounds), “while the statute is remedial, it is remedial solely in favor of an injured third person. It is not to be wrenched out of its intended purpose and its language distorted in order to conform it to the conventional pattern of common–law agency. The driver is not in fact the agent of the owner and the statute does not make him such. No intention can be found in this statute to broaden the scope of the doctrine of contributory negligence.”

Iowa, in Secured Finance Co. v. Chicago Ry. Co., 207 Iowa 1105, 224 N.W. 88, has, under a similar statute, reached a different conclusion from that held by the Court of Appeal of New York in Mills v. Gabriel, supra, and seems to be based largely upon the theory, also found in earlier New York cases, subsequently overruled, that the statute in effect made one who used an automobile with the consent of the owner, the agent of the latter. This relationship, we have seen, is denied by the more recent New York holding in Mills v. Gabriel, supra, which latter case appears to us to declare the better rule.

Originally the law in this state was that the owner was not liable for personal injuries inflicted unless there existed the relationship of principal and agent between the owner and the operator (Lemka v. Nauman, 103 Cal.App. 757, 284 P. 1062), but in order to protect third parties and to make the owner liable for the permissive operation of his car the legislature first enacted in 1929, section 1714 1/4 of the Civil Code, which is now section 402 of the Vehicle Code.

The purpose of this section was to create a remedy against the owner and in favor of one who was injured either in person or property by the negligent operation of a car while operated by one with the owner's permission. No attempt is made in this section to change any other rights which the owner had, except to impute to him the negligence of the bailee. It imposes no other liability, and being penal in its nature, must be strictly construed. Weber v. Pinyan, 9 Cal.2d 226, 70 P.2d 183, 112 A.L.R. 407; Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599; Swing v. Lingo, 129 Cal.App. 518, 19 P.2d 56.

The language of section 402(a) of the Vehicle Code––“and the negligence of such person shall be imputed to the owner for all purposes of civil damages”––is not an attempt to enlarge generally the scope of damage actions but refers only to actions for civil damages rising out of the particular section under examination. If this language should be held to declare a new rule of contributory negligence it would be ambiguous and contrary to the strict construction under which the section must be interpreted.

Appellant also points out that the title to the act is not sufficiently comprehensive if the contention of respondent herein should be adopted. The title is “An act to amend sections 402 * * * of the Vehicle Code, and to add thereto sections 410.5, 415.5, 417 and 418, relating to civil liability and financial responsibility of owners and operators of vehicles.” Appellant calls attention to the fact that the title does not include any reference to the liability of third persons to the owners, but relates only to the civil liability and financial responsibility of owners and operators, and a situation relating to the liability of a third person to the owner is not referred to in the title. In view of our conclusions we need not consider this point. The judgment is reversed.

PULLEN, Presiding Justice.

We concur: THOMPSON, J.; TUTTLE, J.