EDMONDS, J., dissenting. I can see no basis recognized in law for enlarging the vicarious liability of an automobile owner to the extent stated by my associates. In my opinion, they have adopted a construction of section 402 of the Vehicle Code which ignores its express language and is directly contrary to all former decisions of the California appellate courts. The conclusion now reached not only changes the rule as to the owner in the present case, but also, in effect, imposes a retroactive liability upon the respondents and other persons who have loaned their automobiles in reliance upon the former interpretation of the statute. And even more startling is the reversal of a judgment based upon findings of fact which, in turn, are supported by substantial evidence.
Indeed, the essential facts are not disputed. It appears that for the preceding 18 months, Joseph Gigli had loaned his Dodge sedan to his son on an average of twice each week, and when left in the garage at their home, the keys were not taken out of it. On the evening the accident occurred, Arthur asked his father to allow him to use the automobile. The father gave his consent, but, according to his testimony, told Arthur “not to loan the car to nobody else.” He also said he had directed Arthur “Not to leave anybody else use it” and to “Let nobody else drive it.” These answers followed the form of the questions. But on cross-examination he was asked whether all that concerned him was “that he didn’t lend the car to somebody else,” “No it is not,” was the reply. “What were you concerned with?” counsel continued. Mr. Gigli answered: “Leave nobody drive it.” This was followed by the question : “Which is true, that you told him not to lend the car to somebody else and nothing else, or that you told him more than that?” Mr. Gigli replied: “I told him not to leave anybody else drive the car.”
Following this conversation, Arthur took the automobile and with his friend, John Corti, went to Bruno’s Inn, where they made the acquaintance of two girls. The four subsequently agreed to go to Rocca’s Inn, another roadhouse, to dance. Arthur suggested that they go in his father’s sedan, [465]but his newly-found companion objected upon the ground that she did not want to leave her new Plymouth coupe at Bruno’s. Arthur objected to leaving his father’s car there. Corti then asked Arthur to give him the keys to the Dodge, saying that he and the other girl would follow the coupe to Rocca’s. Arthur consented and rode with his girl in her Plymouth. The accident occurred on the way to Rocca’s.
The trial court found that the accident was caused solely by the negligence of Corti, but that he was, at the time of the accident, operating the automobile without the knowledge and without the permission, express or implied, of its owner, Joseph Gigli. In addition, the court found that “at the time and place of the collision . . . John Corti was not acting as the agent, servant or employee of either or both of the defendants Arthur Gigli and Joseph Gigli. ’ ’
In considering the legal position of Joseph Gigli as the owner of the automobile, it is necessary first to determine the nature of the express condition which he imposed when he loaned the car. The only restriction placed upon the use of the car, assert the appellants, was, according to the father’s testimony, “not to loan the car to nobody else.” And the son, they insist, did not loan the car to anyone else hut allowed John Corti, to drive it for his benefit and accommodation. Assuming, however, that some of the evidence affords a basis for such a distinction, other testimony amply supports the trial court’s conclusion as to the terms of the loan. Considering the entire record, it clearly appears to have been Joseph Gigli’s intention that Arthur should allow no one else to drive the car, a condition which Arthur fully understood.
By the terms of section 402 of the Vehicle Code, “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....” There is no ambiguity in these words; the owner is liable only if the injury was occasioned by the negligent operation of the person who is using or operating the motor vehicle with the permission of the owner. And the courts of California and of other states in considering this statute and similar legislation, have uniformly held that, when an owner allows another to use his car but limits the use of the vehicle by the permittee, [466]the latter is not “using or operating the same with the permission, express or implied, of such owner” when he exceeds those limitations. (See, in general, annotations in 135 A.L.R. 481, 486-490; 112 A.L.R. 416, 421-424; 83 A.L.R. 878, 881-883; 61 A.L.R. 866, 872, 873.) Thus, in California, the courts have, without exception, upheld restrictions upon the time, place or purpose of the permittee’s use, and as to who may-drive the automobile. (Time: Engstrom v. Auburn Auto Sales Corp.) 11 Cal.2d 64 [77 P.2d 1059]; Di Rebaylio v. Herndon, 6 Cal.App.2d 567 [44 P.2d 581]. Place or purpose: Henrietta v. Evans, 10 Cal.2d 526 [75 P.2d 1051] ; cf. reasonable deviation from place of operation where no express restriction as to locality in Bayless v. Mull, 50 Cal.App.2d 66 [122 P.2d 608], Person: Bradford v. Sargent, 135 Cal.App. 324, 326 [27 P.2d 93]; Boland v. Gosser, 5 Cal.App.2d 700 [43 P.2d 559]; Howland v. Doyle, 6 Cal.App.2d 311 [44 P.2d 453]; Helmuth v. Frame, 46 Cal.App.2d 381 [115 P.2d 852].)
Assuming that, as stated in the majority and concurring ' opinions, the trier of facts acted unreasonably in concluding that Corti was not driving the car as the agent of Arthur Gigli, although the use of the car at the time of the accident may have been the use of Arthur, the question still remains, under the statute, whether that use by Arthur is a permitted one. For, as pointed out by this court very recently: “The fact of permisison is just as important as is the fact of ownership. If either is absent the statute does not operate.” (Krum v. Malloy, ante, pp. 132,134 [137 P.2d 18].)
It has been held that where the owner gives his express permission for the use of the car for a certain purpose without restriction as to who is to operate it in order to effect that purpose, the authority of the permittee may impliedly include the right to select the operator to carry out the permitted use (Haggard v. Frick, 6 Cal.App.2d 392 [44 P.2d 447] ; Pohle v. Bolinas Beach R. Co., 130 Cal.App. 704 120 P.2d 730]; Sutton v. Tanger, 115 Cal.App. 267 [1 P.2d 521]), although the circumstances may be such as to negative such authority (Howland v. Doyle, supra; and see Engstrom v. Auburn Auto Sales Corp., supra; see annotations in 112 A.L.R. 416, 424, 425; 83 A.L.R. 878, 884; 61 A.L.R. 866, 873-875). But, obviously, an expressed intention always supplants an implied one (Tanner v. Title Ins. & Trust Co., 20 Cal.2d 814, 824 [129 P.2d 383] ; Jones v. Interstate Oil Corp., 115 Cal.App. 302 [1 P.2d 1051]; [467]Cliffe Co. v. Du Pont Eng. Co., 298 F. 649, 651; and see 5 Williston on Contracts [rev. ed. 1937], sec. 1293 n. 1, p. 3682), and for that reason consent may not be implied when it is expressly withheld.
The factors required for a finding of either express permission or of implied consent have been stated in many cases. One of these is Bradford v. Sargent, supra, which presented the same question as is now before the court. It was there shown that the owner of the car causing injury had instructed his son that no one other than a specified person should be allowed to drive it. The son allowed another boy to drive the automobile and an accident resulted. A judgment against the owner was reversed. In determining that no permission contemplated by the statute had been given, the court said: “Express permission would necessarily include prior knowledge of the intended use and an affirmative and active consent to it. An implied consent would indicate a sufferance of use or a passive permission deduced from a failure to object to a known past, present or intended future use under circumstances where the use should be anticipated. Knowledge of some act or intended act on the part of the user by the owner should be necessary before consent to use should be implied. ’ ’ This decision, directly in point, is not discussed in either the concurring opinion or that of the majority, although this court denied a petition for hearing.
And compare the conclusions upon which the judgment in the present ease is reversed with Rowland v. Doyle, supra, p. 315, where the District Court of Appeal held: “Permission to drive a motor vehicle, implied as well as express, such as is necessary to bring the case within section 1714 ¼ [the predecessor of the statute now being considered], can only exist when the owner had knowledge or at least reason for believing that the vehicle would be driven by the person with whose negligence it is sought to charge him. ’ ’ Again a petition for hearing was denied by this court. It also denied a petition for hearing after the decision in Boland v. Gosser, supra. And both Howland v. Doyle and Bradford v. Sargent were expressly approved by this court in Engstrom v. Auburn Auto Sales Corp., supra, and Henrietta v. Evans, supra. The majority opinion, in attempting to distinguish Boland v. Gosser, supra, and Howland v. Doyle, from the present case says that, in those cases, the permittee “had the car or truck to make [468]certain repairs or tests, but turned it over to another for the purpose under circumstances which indicated that such delegation was not contemplated by the owner.” (Italics added.) But how may it be said that the delegation to Corti was contemplated by the owner when Joseph Gigli had expressly forbidden any such delegation, and it is an uncontradicted fact that Arthur Gigli had never before allowed another to drive his father’s car?
The majority opinion also declares that in the ease of Haggard v. Frick, supra, the owner of an automobile was held liable although his son violated the father’s instruction not to permit anyone else to drive it. But in that case it appears that the father merely expressed the wish to his son that he “would rather he would not let any other person drive” the car. In holding Frick, the owner, liable the court pointed out that he had “delivered the ear to his son without direction or restriction as to its use other than the expressed wish that he would not let anyone else drive it. It was given, however, with the intention and understanding that the son should have the exclusive use and control of the car throughout the college year, at a place more than four hundred miles from appellant’s home.” Such precatory words do not constitute a limitation upon the authority of the permittee and the decision is simply one in accord with the rule which places within the authority of a permittee without restriction the right to select an operator to drive the car, with consequent liability upon the owner for negligent operation within the field of the permitted use. Yet this is the sole authority, so far as the cases in this state are concerned, upon which a majority of the court relies for a reversal of the judgment in the present ease. And, in quoting from the case of Bayless v. Mull, supra, their opinion ignores the fact that “there were no express restrictions or limitations” concerning the use of the automobile which caused injury and the court placed its decision upon that ground.
No logical distinction may be made between restrictions upon the purpose, time or place for which an automobile may be used and a limitation upon who may drive it. Indeed, the owner of an automobile may be principally concerned about the operator, for the skill and driving habits of a proposed borrower are usually of much more importance in determining whether one should be entrusted with an automobile than the [469]length of time for or the purpose of the proposed use. Yet in considering a restriction upon time, “. . . it is undisputed, ’ ’ said this court in the Engstrom case “that the only permission given Herndon to use the car was that he might have it for a particularly specified period. The accident happened a day after this time expired. To hold that Herndon was then driving the car with either the express or implied consent of the owner would require us to disregard the plain agreement of the parties.” The facts of the present case are much more compelling in favor of the owner, for the undisputed evidence is that at no time did he give permission to Corti to use the car, and permission certainly may not be implied when he gave positive instructions to the contrary.
The record in Henrictta v. Evans, 10 Cal.2d 526 [75 P.2d 1051], showed “ a case of an original permission for a limited use, the scope of which was exceeded; and the question is whether the original express consent terminated prior to the accident by reason of the violation of the limitation.” The owners entrusted their automobile to one Evans for the sole purpose of driving the car to Beaumont to consummate its sale there. Evans, however, continued on through Beaumont to Colton, where the collision occurred. “There is no evidence,” said the court, “to show authorization to use the car for any other purpose or to drive it to any other place; on the contrary, the only testimony in the record is to the effect that any other use was expressly prohibited. . . . The cases uniformly hold that where the permission is granted for a limited time, any use after the expiration of the period is without consent, and the owner is not liable, unless the circumstances justify an inference of implied consent to further use. . . . On principle, there is no fundamental ground of distinction between a limitation of time and one of purpose or place, in so far as permission is concerned; and it would seem clear that a substantial violation of either limitation terminates the original express consent and makes the subsequent use without permission.” The owners were held not liable.
Nor do the cases from other jurisdictions, cited in the majority opinion, support the conclusions there reached. Following the rule adopted in California, they hold that consent to the use or operation of the motor vehicle by one person, may, in the absence of any express restriction as to the operator, include consent to the operation of the car for the permitted [470]use by another. This is all that was decided in Feitelberg v. Matuson, 124 Misc. 595 [208 N.Y.S. 786], but, the court added, “Of course, the liability of the owner ceases, when the borrower, in turn, gives the use of the car to a third party without the owner’s consent. ’ ’ Also the facts stated in Grant v. Knepper, 245 N.Y. 158 [156 N.E. 650, 54 A.L.R. 845], clearly show that there was no express restriction by the owner of the truck upon the method of operation of the vehicle. As the court there said, although the driver had surrendered to another the guidance of the wheel, he remained on the truck and “was still the director of the enterprise, still the custodian of the instrumentality confided to his keeping, still the master of the ship.”
In the case of Stapleton v. Hertz Drivurself Stations, 129 Misc. 772 [222 N.Y.S. 579], strongly relied upon by the appellants, the trial court held an owner liable although his permittee had signed a lease by the terms of which he expressly agreed not to allow or permit any other person to operate the automobile. In violation of the covenant, he allowed another to drive the automobile, through whose negligence the accident occurred. Upon appeal, the judgment was reversed, the court holding that the use by a third person was not authorized by the owner. (Stapleton v. Hertz Drivurself Stations, 131 Misc. 52 [225 N.Y.S. 661] ; accord: Owen v. Gruntz, 216 App.Div. 19 [214 N.Y.S. 543].)
In Kerns v. Lewis, 246 Mich. 423 [224 N.W. 647], no express limitation was imposed by the owner of the vehicle as to who should drive it.- But that case is not authority upon the question of the owner Corti’s liability for a more fundamental reason. Unlike the California legislation which imposes liability for the negligent operation of a motor vehicle “by any person using or operating the same with the permission, express or implied, of such owner,” the Michigan law makes the owner liable if the “motor vehicle is being driven by the express or implied consent or knowledge of such owner.” In commenting upon this provision, the court said (p. 425) : “Does the essential consent mentioned in the statute relate to the driver, or to the vehicle, ‘being driven’? The statute makes the owner liable if the ‘motor vehicle is being driven with his or her express or implied consent or knowledge,’ and we cannot read into it the restriction that the particular driver must be known by and his driving consented [471]to by the owner. The statute may be drastic, but we cannot render it less so by any permissible construction.”
The only case from a foreign jurisdiction, cited by the appellants or by the majority opinion, in which any express restriction upon the person who might drive was imposed by the owner is King v. Cann, 184 Wash. 554 [52 P.2d 900]. In that case, the court observed, ‘ ‘ There was also some testimony to the effect that Mrs. Cann had told young Holt [the driver of the car at the time of the accident] that she ‘would prefer that he did not drive the car. ’ ’ ’ Thus the case is very similar to that of Haggard v. Frick, 6 Cal.App.2d 392 [44 P.2d 447], where the father merely expressed the wish to his son that he “would rather he would not let any other person drive” the car. In addition, however, liability in the King ease was predicated, not upon any such statute as is here involved, but in accordance with the doctrine of respondeat superior. In the words of the Washington court, “When a member of the family has permission to use the car from the parents, as owners, in so unrestricted a manner as in the instant case, they must be held liable under the principle of agency, or respondeat superior, even though the member of the family turned the driving of the car over to another who proved incompetent or negligent.”
And I can see no reasonable basis for characterizing the limited permission given by the owner of an automobile in connection with its use ‘ ‘ secret restrictions. ’ ’ To hold that an owner may not qualify his permission and restrict it to a specified use of his automobile, modifies the statute in an important particular and makes him liable for consequences regardless of the terms imposed by him and accepted by the borrower of the automobile. It also takes from the trier of fact the right to determine whether, under the particular circumstances shown, the negligent driver was operating the automobile at the time of the accident with the permission, express or implied, of the owner.
The argument of the majority opinion against the recognition of what are termed “secret” restrictions upon the use of a motor vehicle (see Bayless v. Mull, supra, p. 72), as I view the matter, is based upon a misconception of the liability established by section 402 of the Vehicle Code. One is not bound by “secret” restrictions when he has been induced to act through reliance upon the apparent or ostensible authority [472]with which a principal has clothed his agent. (See Civ. Code, sec. 2334.) But, obviously, an injured plaintiff did not allow the accident to occur through reliance upon the fact that the negligently operated vehicle was being used with rather than without the permission of the owner. And, in any event, the victim is not informed by the operation of an automobile, whether it is being driven by a permittee or a thief. Moreover, a limitation upon the purpose or extent of the permitted use is just as “secret” as is a restriction upon the person who may drive the car.
Much of the confusion in the consideration of the question of restrictive use under such statutes as section 402 of the Vehicle Code, and the classification of some restrictions as “secret” or “unreasonable,” undoubtedly has arisen through the reluctance of the courts to recognize such limitations as those upon excessive speed or careless driving. But the wording of the statute, which makes the owner responsible for the “negligence in operation” of his motor vehicle, affords a more satisfactory basis for the exclusion of restrictions upon the manner of driving than a judicially created one dependent upon what a particular court may deem reasonable. For the Legislature has taken from the owner the right to limit the extent of his permission under the statute to a non-negligent operation by express restrictions upon his permittee to drive only in a safe, careful, or lawful manner. So long, therefore, as the owner, either expressly or impliedly, has consented to the purpose and extent to which the car may be used and its operation by the person who is driving at the time of the accident, he is responsible for the negligence of that driver occurring while the car is being operated within such prescribed limits, regardless of any directions as to the manner of operation.
Also, in my judgment, the majority and concurring opinions have unduly extended the meaning of the word “operation” as used in the statute. In order to impose liability upon Joseph Gigli, the negligent “operation” must have been that of Arthur, as he was “the person using or operating” the car with the qualified permission of the owner. The word “operation,” although broadly construed to hold that the permittee may be operating the car although not at the wheel so long as he remains in the car and retains supervision and control over the manner of driving, has not been extended to include [473]a situation where the permittee is no longer in the car and therefore not in a position to “direct or superintend” the operation of the vehicle. (See Hicks v. Reis, 21 Cal.2d 654, 659 [134 P.2d 788]; Armstrong v. Sengo, 17 Cal.App.2d 300 [61 P.2d 1188]; Sutton v. Tanger, 115 Cal.App. 267 [1 P.2d 521]; Grant v. Knepper, 245 N.Y. 158 [156 N.E. 650, 54 A.L.R. 845] ; Feitelberg v. Matuson, 124 Misc. 595 [208 N.Y.S. 786]; Owen v. Grunts, 216 App.Div. 19 [214 N.Y.S. 543] ; Stapleton v. Herts Drivurself Stations Inc., 131 Misc. 52 [225 N.Y.S. 661].) It is therefore clear that under the rule of these decisions, the “negligence in the operation” of the Gigli machine was not that of Arthur, who was riding in another automobile.
In the foregoing discussion, I have assumed the correctness of the conclusion in the majority and concurring opinions that no evidence, or inference from the evidence, justified the trial court in finding that Corti was not the agent of Arthur Gigli at the time of the accident. As I read the record, it would support a conclusion by the trial court that the agency relation existed, in view of the fact that Arthur did not want to leave his father’s car behind and also because he and Corti had decided that one of them should ride with the girls, as otherwise they might not “show up” at Rocca’s. But, the testimony shows, it was Corti’s suggestion that he drive the car. He was very insistent in his demand for it, and wished to use it as a means of transportation for his girl and himself. Certainly this evidence is entirely consistent with the finding of the trial court that Corti, at the time of the accident, was not driving the Dodge car as the agent of either the father or the son.
Section 402 of the Vehicle Code imposes a liability upon the owner which did not exist at common law. It may be said with much reason that, in the interests of public policy, the owner of an automobile should be responsible for its negligent use regardless of who may be operating it at the time of the injury. But that is a matter for legislative and not judicial concern, and the statute here in controversy imposes liability only when the vehicle is being operated at the time of the accident with the consent of the owner. Whether in a given case the driver at fault had such permission is a question of fact. The trier of fact is not bound to believe the testimony of an owner as to the restrictions imposed by him upon the use [474]of his ear by the permittee, even though it be uncontradicted (Prickett v. Whapples, 10 Cal.App.2d 701, 703-705 [52 P.2d 972]), and many times this court has affirmed judgments in favor of the plaintiffs upon testimony as meagre as that which supports the court’s findings in the present case. (Hicks v. Reis, 21 Cal.2d 654 [134 P.2d 788] ; Blank v. Coffin, 20 Cal.2d 457 [126 P.2d 868].) The application of the rule announced in those cases that any reasonable doubt should be resolved in favor of the conclusion by the trier of fact should not be limited to but one party to an action under that statute and, in my opinion, compels agreement with the finding that Corti was not the agent of Arthur Gigli. Of course, if Corti was not the agent of Arthur, then obviously the former’s use of the car at the time of the accident was not Arthur’s use, and the entire structure upon which the majority and concurring opinions are predicated collapses, as under no theory of construction, could Corti’s use then be said to be the one to which Joseph Gigli had consented.
For these reasons I believe that the judgment should be affirmed as to both Joseph Gigli and Arthur Gigli.