Phillips v. Cuccio

FRICKE, J.,

pro tem.

Appeal by defendant Virginia Cuccio from judgment awarding plaintiff damages for personal injuries.

An automobile driven by Peter John Cuccio but owned by his mother, appellant herein, struck and injured respondent. The court, sitting without a jury, rendered judgment for respondent for the resultant damages. Appellant presents the sole question as to whether there was any evidence to support the finding of the court that at the time in question the automobile was being operated with the consent of appellant. The question is further simplified by the fact that there was no proof of any express consent, leaving the question here whether there was implied consent.

It appears in evidence that Peter Cuccio had driven the car in question four times or more over a period of three years, one or more of these occasions being subsequent to the accident. As to some of those the evidence might be interpreted that the driving was with the consent of the mother; as to the remainder the record is silent. The mother testified that her son did not drive the car very much and that she bought it with her separate funds, for the family.

Respondent rests his side of the question upon the claim that the ownership of the automobile by the mother

[522]

raised a presumption that the son drove the machine with her consent and for her purposes, and that even in the face of contradictory' testimony the court could, if it doubted the credibility of the testimony, base its finding upon the presumption alone. This view is sustained by

Randolph

v.

Hunt,

41 Cal. App. 739, 746 [183 Pac. 358],

Hathaway

v.

Mathews,

85 Cal. App. 31, 39 [258 Pac. 712] ,

Perry