Gutknecht v. Johnson

DESMOND, P. J.

In this case plaintiff in the court below, respondent here, recovered damages from defendants Johnson and Norman for injuries sustained on February 21, 1941, when she, as a pedestrian, was struck by a Packard coupé driven by Johnson. He had undertaken to buy the coupé from Norman under a conditional sale contract. The latter appeals from the judgment claiming that the trial court erred in disregarding the uncontradieted testimony that he was not the legal or registered owner of the car at the time of the accident. He also claims that error arose when the trial court denied his motion for a new trial, but, reviewing the evidence as reported in the bill of exceptions, we find no merit in that claim. His present contention that plaintiff was guilty of contributory negligence was not set up as a defense and that is required when reliance is placed upon it

(Crabbe

v.

Mammoth Channel G. Min. Co.

(1914), 168 Cal. 500, 505 [143 P. 714]); nor did the trial court find that the facts warranted any such conclusion. We direct our attention, therefore, to the conditions surrounding ownership of the Packard automobile, and the fixing of liability for the damage done.

The court found that on February 21, 1941, the date of the accident, another named defendant, C. O. Bisele, who apparently was not served, was the registered and legal owner of the Packard car which was at that time licensed by the

[317]

State of Texas; that it had been sold on or about February-15, 1941, to defendant Norman, a dealer, as such word is defined in the Vehicle Code of California; that Norman sold the automobile to defendant Johnson under conditional sales contract on or about February 17, 1941; that at the time of the accident, February 21, 1941, the Packard coupé was owned by defendant Johnson; that neither Eisele, Norman or Johnson had at that time “complied with the provisions of the California Vehicle Code in that registration slip for said Packard coupé was not turned in to the Department of Motor Vehicles for transfer, nor was a notice given by the defendant C. 0. Eisele to said department of the sale of said Packard coupé to the defendant J. H. Norman, a dealer in used automobiles, nor was a notice given by the defendant J. H. Norman to said department of the sale of said Packard coupé to the defendant Samuel Johnson.” Another finding was as follows: “That it is true that the defendant Samuel Johnson was at the time and place of said accident, driving, operating and controlling said Packard automobile hereinbefore referred to