Casey v. Fortune

California Court of Appeal Apr 7, 1947 No. Civ. 15460Published

Before: Wood

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Holding. The court held that the evidence was sufficient to support a finding of implied permission for a minor to operate his mother's vehicle, rendering the owner liable under Section 402(a) of the Vehicle Code. The trial court was not required to accept the owner's uncontradicted testimony regarding lack of consent given the circumstances of the keys' accessibility and the owner's failure to prevent the minor's repeated use of the car.

Issues

Whether there was sufficient evidence to support the trial court's finding that the defendant's minor son operated her automobile with her implied permission.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court may have concluded that, under the circumstances, the keeping of the keys in such an accessible place refuted her testimony that he was told not to use the automobile.”

“From the fact that she took no positive steps to prevent the use of the car by Robert under the circumstances, it could reasonably be inferred that she impliedly consented to its use.”

[923]

WOOD, J.

This is an action for damages sustained by plaintiff as the result of a collision between an automobile operated by Robert Fortune and a motorcycle operated by plaintiff. Defendant Amanda Fortune is the owner of the automobile and the mother of Robert. Trial was without a jury. Judgment was for plaintiff against both defendants in the sum of $4,824.67. Amanda Fortune appeals from the. judgment.

The accident occurred on July 10, 1944, at which time defendant Robert Fortune was 16 years of age, and had no license to operate an automobile. His parents were divorced, and the custody of said minor had been awarded to his mother, and he was living in her home. The complaint alleged, and the court found, that Robert was operating the automobile at the time of the collision with the consent of his mother.

The sole contention on appeal is that there is no evidence to support the finding that Robert was operating the automobile with the knowledge and consent of appellant.

Section 402(a) of the Vehicle Code provides 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 ... 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. ’ ’

The only evidence introduced on the issue of permission was the testimony of appellant and Robert given under section 2055 of the Code of Civil Procedure. Appellant asserts that that testimony was uncontradicted, and that it shows that she had “persistently forbade the defendant Robert” to drive her automobile. Permission, under section 402(a) of the Vehicle Code, cannot be left to speculation or conjecture nor be assumed, but must be affirmatively proved

(Engstrom

Auburn Auto. Sales Corp.,

11 Cal.2d 64, 68 [77 P.2d 1059]), and the fact of permission is just as important as is the fact of ownership

Casey v. Fortune

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WOOD, J.

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