Hobbs v. Transport Motor Co.

SHENK, J.

The plaintiffs brought separate actions against the owner and driver of a borrowed ear for damages resulting from injuries sustained when the borrowed car collided with the ear in which the plaintiffs were riding. The actions were consolidated for trial before a jury. In the action by Prank W. Hobbs, the jury returned a verdict against the driver in the sum of $10,000 and against the owner in the statutory amount of $5,000. In each of the other actions the verdict was for $1,000 against both defendants. The owner, Transport Motor Company, appealed from the judgments on the several verdicts.

The negligence of the defendant driver was conceded at the trial, and there is no contention that the damages awarded by the jury are excessive. The principal question is whether the record sustains the implied finding of the jury that the car was being used or operated with the permission, express or implied, of the owner. Section 402 of the California Vehicle Code provides: “Every owner of a motor vehicle is liable and responsible for the death of or injury to person or prop

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erty 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. ...”

The evidence was conflicting. The facts which tend to support the verdicts are the following:

The defendant, Transport Motor Company, was engaged in the business of selling automobiles in the city of Oakland. About 5:30 o’clock on the evening of January 2, 1941, the defendant Rodrigues, a youth of twenty years, entered the company’s salesrooms and expressed interest in the purchase of a Ford car. He selected a 1940 used Ford, settled on a price of $700, and inquired as to its performance. The salesman invited him to take it out and try it. Rodrigues said he didn’t have time before dinner and the salesman suggested he try it after dinner. He returned at 7 o’clock. The salesmen moved several other cars to permit passageway for the 1940 Ford. Rodrigues got into the car and sat next to the salesman who was at the wheel. He was acting in the belief that prospective customers were not permitted to take out a car alone and that the salesman intended to accompany him. But the salesman turned the car over to Rodrigues with the caution, “We close at 9 o’clock.” Rodrigues owned a 1939 Ford which had not been performing satisfactorily because the motor was “missing” at high speed. He testified that he intended to buy the 1940 car if the motor of his car could not be adjusted. When he left the salesroom floor, he drove the company’s Ford to a place where he had left his own car with two companions in it. Both cars were then driven to a service station. Rodrigues had repaired or replaced the ignition system in his car. One of his companions suggested that perhaps the fault was with the battery. Rodrigues removed the battery from the company’s car and placed it on the floor of the service station a few feet from his own car, and the battery from his car was put in the company’s car. The Rodrigues car was left at the station with the company’s battery on the floor near it, and, with the Rodrigues battery in the company’s car, Rodrigues and his companions drove the company’s car away from the station. It was during that ride, and while crossing an arterial intersection at high speed without making the required stop, that the collision with the plaintiffs’ car occurred.