Ceranski v. Muensch

California Court of Appeal Oct 4, 1943 No. Civ. 14053, 14062Published

Before: Wood (W. J.)

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Holding. The court held that the trial court properly directed a verdict for defendants because uncontradicted evidence dispelled any inference of agency, and that defendants were entitled to recover costs despite insurance coverage for litigation expenses.

Issues

Whether an inference of agency arising from permissive use of an automobile is dispelled as a matter of law by uncontradicted evidence to the contrary.
Whether a prevailing defendant may recover costs when those costs are paid by an insurance carrier under a liability policy.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the inference of agency is dispelled as a matter of law when it is rebutted by clear, positive and uncontradicted evidence which is not open to doubt”

“The code sections contain no requirement that a party claiming costs must have personally incurred the obligations enumerated in the memorandum.”

“Defendants incurred legal liability to pay the costs of litigation even though some other party may have agreed to reimburse them”

WOOD (W. J.), J.

Plaintiffs commenced this action to recover damages for injuries which they suffered when an automobile driven by plaintiff Edmond Sobanski collided with an automobile which was owned by two of the defendants. Plaintiffs have appealed from a judgment entered after the jury had been instructed to return a verdict for defendants. There is also an appeal from an order denying plaintiffs’ motion to tax costs.

[753]

The accident in question occurred on January 28, 1941. In their complaint plaintiffs alleged that defendant Harry Muensch negligently drove the car that collided with the car in which plaintiffs were riding; that Harry Muensch was a minor and that defendants Arnold G. and Bertha Muensch, parents of Harry Muensch, became responsible for the damages occasioned by the accident because they had procured the driver’s license for Harry Muensch; that defendants were the owners of the automobile involved in the collision. At the trial it was definitely established that the car was driven by one David Henderson and not by Harry

Muensch;

that Harry Muensch was not a minor at the time of the accident; and that the car was owned by Harry Muensch and Bertha Muensch. At the close of plaintiffs’ evidence the trial court granted a motion for a nonsuit as to Arnold G. Muensch and when both sides completed their evidence the court directed the jury to return a verdict in favor of the other two defendants.

It was established that David Henderson was available for personal service of process, but he was not made a party defendant as required by section 402(c) of the Vehicle Code in eases where liability is predicated upon imputed negligence. Plaintiffs do not now claim that they are entitled to recover under the imputed negligence section of the Vehicle Code but they do contend that an inference of agency arose from the fact that Henderson was using the car with the owners’ consent and that the issue of agency should have been submitted to the jury. A number of authorities support the contention that an inference of agency may be drawn from proof of permissive use of an automobile. (See

Montanya

Ceranski v. Muensch

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WOOD (W. J.), J.

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