Opinion
See 114 P.2d 406.
Rehearing Granted June 11, 1941.
Appeal from Superior Court, Los Angeles County; Kurtz Kaufmann, Judge, pro tem.
Action by Maurice Lanfried against Wallace Bosworth and others, for injuries sustained in an automobile accident. From the judgment, the plaintiff appeals.
Judgment in favor of one defendant reversed, and order granting motion of another defendant for a new trial reversed with directions.
COUNSEL
Max Fink and Ray Sandler, both of Los Angeles, for appellant.
Charles E. Taintor, of Los Angeles, for respondent Wallace Bosworth.
Sam Wolf and Leo Shapiro, both of Los Angeles, for respondent Martha J. Like.
OPINION
WOOD, Acting Presiding Justice.
Plaintiff commenced this action to recover damages for injuries which he suffered when the automobile which he was driving collided with an automobile driven by defendant Dolores Davis, which was owned by defendant Bosworth and registered in the name of defendant Like. The accident occurred on April 6, 1938, on Los Feliz boulevard near its intersection with Griffith Park boulevard in the city of Los Angeles.
A joint answer was filed by defendants Davis and Bosworth but neither of these defendants appeared at the trial either in person or by counsel. A separate answer was filed by defendant Like, who appeared at the trial and contested plaintiff’s claim. The trial court found against defendants Davis and Bosworth and rendered judgment against them in the sum of $2,137. The judgment was entered on January 6, 1939, and on the same date judgment was entered in favor of defendant Like. On February 16, 1939, plaintiff caused to be served and filed a notice of motion to set aside and vacate the judgments and to enter a judgment under sections 663 and 663a of the Code of Civil Procedure against all three defendants. On February 28, 1939, defendant Bosworth caused to be served and filed a notice of intention to move for a new trial. On March 8, 1939, and prior to the hearings on the two motions just mentioned, plaintiff caused to be served and filed his notice of appeal from that portion of the judgment which ordered and adjudged that defendant Like have judgment against plaintiff. A minute order was entered on April 18, 1939, denying plaintiff’s motion to vacate the judgment and to enter a new judgment against the three defendants. A minute order was entered on April 17, 1939, amending the original findings by inserting a provision that the automobile in question was driven by defendant Davis without the consent and permission of defendant Bosworth. By the same minute order the judgment against Bosworth was vacated and a new trial was granted to him on the grounds of insufficiency of the evidence to support the judgment and that the judgment as to Bosworth was contrary to law. Thereafter plaintiff appealed from the above-mentioned minute orders affecting defendant Bosworth.
The trial court found that plaintiff’s injuries were suffered as the result of the negligence of defendant Davis in driving the automobile in question; that the automobile was originally sold to defendant Like, who became its registered owner; that in December, 1937, defendant Like sold and delivered the automobile to defendant Bosworth, giving him a bill of sale covering all of her right, title and interest in it; that defendant Like did not notify the department of motor vehicle of this sale and transfer; that on May 7, 1938 (a month after the accident), endorsements were made on the certificate of ownership of the automobile by defendant Like, as transferor, and defendant Bosworth, as transferee. The court further found that defendant Like at no time had any dealings with defendant Davis with reference to the use of the automobile and had no knowledge that she was operating it.
It is a criminal offense for any person to drive an automobile not his own without the consent of the owner and in the absence of the owner (Vehicle Code, sec. 503, St.1935, p. 174). Section 1963 of the Code of Civil Procedure enumerates disputable presumptions, among them being the presumptions that a person is innocent of crime or wrong and that the law has been obeyed. The record before us is barren of any evidence concerning the relationship between defendants Bosworth and Davis unless it be that some mutual relationship was shown by their filing a joint answer. In determining whether defendant Davis was driving the automobile with the consent of defendant Bosworth the court was confronted with the presumption that defendant Davis was innocent of crime or wrong. This presumption is sufficient to support a finding that defendant Davis operated the car with the consent of defendant Bosworth. Indeed, no contrary finding could be supported by the evidence. The code section provides that the presumption is "satisfactory" unless controverted by other evidence, but no other evidence was presented to the court. In Prickett v. Whapples, 10 Cal.App.2d 701, 52 P.2d 972, 973, it was held that "the presumption arises that one operating the automobile of another has the necessary consent to make his act lawful". Manifestly the trial court erred in concluding that the findings should be amended, that the evidence was insufficient to support the original judgment against defendant Bosworth and that it was contrary to law.
Under the facts shown in the record defendant Like is also liable for the damages occasioned by the negligence of defendant Davis. Section 402 of the Vehicle Code, St.1935, p. 153, provides for liability of the owner of an automobile for the negligence of any person who operates it with the permission of the owner, express or implied. Sections 177(a) and 178 of the Vehicle Code, St.1935, p. 115, provide that one who sells an automobile shall immediately give written notice of the transfer to the department of motor vehicles and that a seller who has made proper endorsement and delivery of the certificate of ownership shall not be deemed the owner so as to be subject to civil liability for the operation of the vehicle by another. The trial court found that defendant Like did not notify the motor vehicle department and did not endorse the certificate of ownership of the automobile in question until after the accident. In Bunch v. Kin, 2 Cal.App.2d 81, 37 P.2d 744, 747, the question of the liability of the owner arose under statutes substantially the same as those in effect at the time of the accident under discussion and it was there held that the seller may relieve himself from liability either by notifying the department or by endorsement and delivery of the certificate of ownership to the purchaser and that until one or the other of these things be done the seller continues to be the owner "so far as liability to a third person is concerned".
Defendant Like cannot escape liability by reason of her testimony that she was not acquainted with defendant Davis and was ignorant of her use of the car. When defendant Like transferred and delivered the car to defendant Bosworth she invested him with the same authority to consent to its use by another as she had in the first instance. Haggard v. Frick, 6 Cal.App.2d 392, 44 P.2d 447; Sutton v. Tanger, 115 Cal.App. 267, 1 P.2d 521.
The order made on April 17, 1939, amending the findings of fact and conclusions of law and vacating the judgment against defendant Bosworth and granting him a new trial is reversed. The superior court is directed to enter judgment in favor of plaintiff and against defendant Like in the sum of $2,137 as of January 6, 1939.
I concur: McCOMB, J.