STEWART v. NORSIGIAN ET AL (1944)

Plaintiff has filed a petition for rehearing in which she cites numerous cases not called to our attention before. She maintains they support her argument that the inference may be drawn that Norsigian was the agent of Pacific Finance Corporation under the proven facts of the case. She argues that these cases support the rule that the inference of agency may be drawn from possession of the car by Norsigian with the consent of the owner, without any showing that he was an employee or belonged to the family group of the owner.

She cites Montanya v. Brown, 31 Cal.App.2d 642, 88 P.2d 745. In that case the owner consented that his wife, who could not drive, could use the car and that it could be driven by her sister. The trial court rendered judgment against the owner for $35,000 on the theory of agency. The judgment was reduced to the $5000 permitted under section 402 of the Vehicle Code, St.1935, p. 153, against an owner where permissive use is established. The family group theory was not considered on appeal although it might have been applicable under the facts of that case, as it might have been held that the car was under the control of the wife although actually operated by her sister, had that question been raised. See Souza v. Corti, 22 Cal.2d 454, 139 P.2d 645, 147 A.L.R. 861.

Plaintiff relies on the case of Malmstrom v. Bridges, 8 Cal.App.2d 5, 47 P.2d 336. That case turned on the question of employment and subagency which the appellate court held was established by the evidence, and not on agency inferred from permissive use.

Our attention is directed to the case of Fahey v. Madden, 56 Cal.App. 593, 206 P. 128, 130. The defendant Madden was the owner of an automobile which one Boen was driving with his consent at the time of the accident. The jury returned a verdict for plaintiff and the trial court granted Madden's motion for new trial. This order was affirmed on appeal on the ground that the jury was erroneously instructed, as follows: “It is admitted by the pleadings that the defendant Madden was the owner of the automobile at the time of the accident and that the defendant Boen was driving the automobile at the time of the accident with the permission, consent and approval of the defendant Madden. This is prima facie proof that the driver was engaged in the owner's service and a presumption arises that the automobile was in use for the owner's benefit. Testimony that the automobile was loaned to Boen does not, as a matter of law, destroy the presumption unless from the evidence you find that it was loaned as claimed by the defense. If you should find that the said automobile was not loaned to said Boen as claimed by the defense, and if you also find that the injury to Fahey was the result of the negligent operation of the automobile your verdict must be for the plaintiff, and against defendants Madden and Boen unless you further find that the plaintiff was guilty of contributory negligence.”

This instruction was held to be erroneous and sufficiently prejudicial to support the order granting the motion for new trial.

Dierks v. Newsom, 49 Cal.App. 789, 194 P. 518, 520, involved a judgment for damages caused by an automobile being driven by one Gregory and owned by the defendant Newsom. The evidence justified the conclusion by the trier of fact, as stated in the last paragraph of the opinion, “that Gregory was authorized by the appellant to take the car for the purpose of having it repaired, its judgment holding the appellant responsible for Gregory's negligence in performing his mission must be affirmed, and it is so ordered.” This evidence certainly indicated something more than permissive use and justified the holding of an agency for a special purpose.

In McWhirter v. Fuller, 35 Cal.App. 288, 170 P. 417, the plaintiff recovered judgment against the defendant who was the owner of an automobile which was being operated by his wife with his express permission and consent. Under the facts before the court it was held that a prima facie case of agency of the wife was established which is in accordance with the rule followed in many jurisdictions where the family group rule is applied.

We fail to understand why plaintiff has cited the case of Hathaway v. Mathews, 85 Cal.App. 31, 258 P. 712. It is true that the opinion contains a general statement that the fact of ownership alone establishes a prima facie case against the owner for the reason that the “presumption” arises that the driver is an agent of the owner. From any point of view this is not a technically correct statement of the law as, among other things, it omits the question of permission. Miss Grant was the owner of the car which she had loaned to Neal Mathews for a trip to Venice. On this journey Mathews took Miss Grant to her place of employment and the accident happened while Miss Grant was in the car going to that destination. The trial court rendered judgment in favor of Miss Grant and against Mathews. This judgment was affirmed on appeal because of the facts found. Had judgment gone against Miss Grant it might have been affirmed on appeal under the rules announced in Bosse v. Marye, 80 Cal.App. 109, 250 P. 693, and Souza v. Corti, supra. The accident occurred before the adoption of section 1717 1/4 of the Civil Code which was superseded by section 402 of the Vehicle Code. This is true of the other cases considered here where the accident happened prior to August 14, 1929. (Stats.1929, p. 565, Civil Code, § 1714 1/2.)

The case of Perry v. A. Paladini, Inc., 89 Cal.App. 275, 264 P. 580, 583, contains statements to the effect that proof of ownership and possession is sufficient to establish a prima facie case of agency. The first question decided was the sufficiency of the evidence to support the finding that A. Paladini, Inc., was the owner of the truck at the time of the accident. The trial court so found and the appellate court was of the opinion that the evidence was amply sufficient to support such a finding. The question of the agency of Raymond Zanetta, the driver, was considered at length. A. Paladini, Inc., was engaged in the wholesale distribution of fresh fish and had places of business in Monterey and San Francisco and transported fresh fish by truck from Monterey to San Francisco. Raymond Zanetta had been employed by A. Paladini, Inc., for ten months preceding the accident and was so employed by it at the time of trial. The appellate court made the following comment on this evidence: “Summarizing the evidence of plaintiff, we have these facts: The truck of appellant, engaged in a business similar to that of the appellant, at a place where the appellant would usually be engaged in the conduct of his business, and being operated by one who previous to the accident and subsequent thereto was in the employ of appellant. It will thus be noted that plaintiff went much beyond the establishing of a prima facie case resting upon mere ownership.”

Certainly such evidence was sufficient to support a finding of agency without relying on any inference.

Ransford v. Ainsworth, 196 Cal. 279, 237 P. 747, is the last case cited by plaintiff in support of her contention that permissive possession and use of an automobile raises the inference of agency without the further proof that the operator is an employee or a member of the family group of the owner or is operating the car for or under the control of a member of such family group. In this case the operator was the husband of the owner which places the case within the family group class.

In practically all of the cited cases there are statements to the effect that the inference of agency arises from the fact of possession and permissive use. Those statements were by way of argument under the facts before the court. The weight to be given them must be measured by those facts and the ultimate action taken on the case. Isolated statements and paragraphs may not be lifted from an opinion and regarded as abstract and correct statements of the law. They must be considered in connection with the factual situation the author of the opinion is discussing. They are modified by such factual situation. This is illustrated in the instant case where we have referred to the family group rule without attempting any exact definition of it. Thus the cases relied upon by plaintiff do not establish the rule that mere permissive use of an automobile raises the inference of agency. They do not cause us to change our views that, in addition to permissive use the plaintiff must also prove either employment of the operator by the owner, or that the operator was a member of the family group of the owner, or was operating the car under the control of or for a member of the family group of the owner in order to justify the inference of agency.

Plaintiff argues that the family group theory has been rejected in California, citing Perry v. Simeone, 197 Cal. 132, 239 P. 1056; Idemoto v. Scheidecker, 193 Cal. 653, 226 P. 922; Spence v. Fisher, 184 Cal. 209, 193 P. 255, 14 A.L.R. 1083; Ormston v. Lane, 90 Cal.App. 481, 266 P. 304; Grillich v. Weinshenk, 64 Cal.App. 474, 222 P. 160, and Sanfilippo v. Lesser, 59 Cal.App. 86, 210 P. 44. Speaking very generally, those cases are based on the old and well–established rule that in the absence of statute a parent is not liable for the torts of a child. The distinction between those cases, and others which we classify as falling within the family group class, is pointed out in Sanfilippo v. Lesser, supra.

Prior to the adoption of section 1717 1/4 of the Civil Code, now section 402 of the Vehicle Code, St.1937, p. 2353, no right of action existed against the owner of a vehicle simply because he had given another permission to operate it. Such right of action is clearly a creature of statute which limits the recovery against the owner to five or ten thousand dollars, depending on circumstances, and also depending on the further condition that the right of action does not arise “through the relationship of principal and agent or master and servant.” If the mere possession and permissive use of an automobile made the owner liable for the negligence of the operator under the doctrine of respondeat superior, then subdivision “b” of section 402 of the Vehicle Code is entirely meaningless and there would be no limitation on the amount that an injured plaintiff could recover against such owner. To so hold would be the worst kind of judicial legislation and would nullify a clear and unambiguous enactment of the legislature. This court cannot legislate and it does not propose to do so. We adhere to the views formerly expressed.

The petition for rehearing is denied.

PER CURIAM.

Hearing denied; CARTER, J., dissenting.