Burdine v. Severin Motors, Inc.

BARNARD, P. J.

This is an action for damages resulting from a collision between a 1936 Pontiac coupé driven by Frank Contreras and a motor scooter on which the minor plaintiffs were riding, which occurred on October 5, 1954. The complaint named Contreras, Severin Motors, Inc. and Harry Lucas, doing business as Lucas Auto Salvage, as defendants. It alleged, among other things, that at the time of the accident the defendants and each of them were, and now are, the owners of the Pontiac car, and that at the time in question Contreras

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was driving the Pontiac with the knowledge and consent of each of the defendants. Contreras defaulted and a default judgment was entered in favor of the plaintiffs as against him. The case was tried by the court sitting without a jury. At the conclusion of the plaintiffs’ case a judgment of nonsuit was entered in favor of Lucas. At the conclusion of the trial the court found, among other things, that prior to August 5, 1954, Severin Motors, Inc. was the owner of the Pontiac automobile; that on August 5, 1954, Severin Motors, Inc. sold the Pontiac to one Jacob Krause, for junk; that a few days later the pink slip and the white slip were mailed to Jacob Krause; that several days after August 5, 1954, and after the delivery of the Pontiac and the ownership and registration certificates to Krause, and before the accident happened, Krause transferred possession of the Pontiac to an unidentified Mexican man for cash, and delivered the ownership certificate to him; and that at no time did Severin Motors, Inc:, either expressly or impliedly permit Contreras to use or operate this automobile. Judgment was entered that the plaintiffs take nothing against Severin Motors, Inc. The plaintiffs have appealed from that judgment and from the judgment in favor of Lucas.

It appears from the evidence that Severin Motors was a licensed dealer, selling automobiles wholesale and retail; that Lucas was a buyer of wrecked cars for junk; and that for two years prior to August 5, 1954, Lucas had bought an average of five cars each month wholesale from Severin Motors, through its sales manager S. T. Maxwell, for the purpose of junking them. In July, 1954, Severin Motors had taken this Pontiac in as part of the down payment on another car. It also received the pink slip signed by the original owner, and the white slip with an attached power of attorney signed by the original owner. On August 5, 1954, Krause came to Severin’s used car lot and bought three old cars, including this Pontiac, at $10 each. A sales order was made out listing the three cars at a total price of $30, naming Lucas Auto Salvage as the purchaser and marked “Paid.” This was signed “Lucas Auto Salvage by Jacob Krause,” and by Maxwell as authorized executive of Severin Motors. A copy of this purchase order was given to Krause, on which Maxwell wrote “Please deliver Pinks and Whites to Mr. Krause.” Krause took possession of the cars and a day or two later he received the pink and white slips. The pink slip then contained, in addition to the signature of the original owner