Brown v. Roland

THE COURT.

Plaintiffs Fred V. Brown and B. E. Stewart are doing business under the firm name of Brown Motor Company as dealers in automobiles. The record shows that through one of their employees they allowed the defendant Robert Roland, described in the body of complaint as a minor, to drive a Mercury sedan automobile, constituting part of their stock, for the purpose of demonstrating it to his parents, the defendants Grace Roland and D. E. Roland, who, as he gave plaintiffs to understand, might be interested in buying it. Although young Roland is thus described as a minor, he is not designated as such in the caption of the complaint nor does he appear herein by a guardian

ad litem.

His minority, however, seems to us sufficiently admitted on the pleadings.

With the permission of the plaintiff’s salesman young Roland took his mother for a drive, thereafter returning the car to the plaintiffs. Subsequently he represented to the plaintiff’s salesman that on the following Sunday his father was to make a trip to Loma Linda and would be interested in trying out the car on that trip. On the Saturday afternoon before the contemplated Sunday trip he, with the permission of the plaintiffs’ salesman, took the car out once more, and while driving it with some guests of his own and without the presence of his parents, wrecked it. The father testified that when the son had spoken to him about using the car on Sunday that he had told him to “forget it”, as he was'not able to buy a car. It appears that the minor held an operator’s license, issued to him by the State of California upon his parents’ verified application. The plaintiffs now sue both the

*Supp. 827

minor and his parents to recover damages for the injury to the automobile. Judgment was given in plaintiffs’ favor for $411.77, made up of an aggregate of $311.70 expended for repairs on the car and $100 depreciation caused by the accident. The defendants appeal.

There is no merit in the contention that a failure to appoint a guardian

ad litem

invalidates the judgment.

(Pascoe

v.

Payne,

124 Cal. App. 528 [12 Pac. (2d) 1091].)

With respect to the ownership of the car, we think the general rule should be applied that in an action by the bailor against the bailee the latter will not be allowed to set up title in another. (8 C. J. S., pp. 253, 254, see. 21, and cases there cited; 4 Cal. Jur., p. 13: