Wilcox v. Berry

EDMONDS, J.

E. H. Wilcox sued Jess G. Berry and Violet A. Berry for personal injuries assertedly sustained in an accident resulting from the operation of an automobile by Mr. Berry at a time when his codefendant was not present. Mr. Berry could not be found for service of summons, and Mrs. Berry’s appeal from the judgment rendered against her presents only the question as to her liability for the damages suffered by the plaintiff.

Upon the trial the court received, over Mrs. Berry’s objection, a statement assertedly made by Mr. Berry at the time of the accident to the effect that he could not stop the automobile because the brakes did not work properly. Other evidence showed that this automobile had been purchased by him and Mrs. Berry after their marriage with their combined earnings, except for a trade-in allowance of $100. It was registered in the names of “Jess B. Berry and/or Violet A. Berry” and insurance policies were issued accordingly. The Berrys’ agreement as to ownership of the automobile was that each of them equally should be entitled to the use of the car and that a sale of it would require their joint consent. As an adverse witness called under section 2055 of the Code of Civil Procedure, Mrs. Berry testified that Mr. Berry generally used the

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car, that she had no objection to his use of it and that such use was with her permission.

As justifying the reversal of the judgment against her, Mrs. Berry contends that the admission in evidence of Mr. Berry’s statement constitutes prejudicial error; that the evidence is insufficient to support the finding of ownership of the automobile; and that the finding of operation of the automobile by Mr. Berry with the permission of Mrs. Berry, within the meaning of the Vehicle Code, is against law.

Section 402 of the Vehicle Code provides, in part, that “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, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.” This section has been held to apply as between joint owners