Weinberg v. Whitebone

WARD, J.

This appeal involves the statutory provision (Veh. Code, § 402) necessary to relieve a person from civil liability as “owner” of a vehicle at the time of an accident, and Vehicle Code, sections 186, 177 and 178, which relate to or modify section 402.

The judgment is based upon two verdicts, one for the sum of $6,000 in favor of plaintiff Philip Weinberg, and the other in the sum of $1,250 in favor of plaintiff Clare Weinberg. The defendants are Cecil A. Whitebone and Selma S. White-bone, individually, and as copartners doing business as Midtown Motor Sales Company, and Midtown Motor Sales Company, a copartnership. The complaint joins as a codefendant Carl S. Feuerhelm, driver of the automobile which collided with a “pickup truck” operated by Philip Weinberg. The record shows that Feuerhelm was served but defaulted. So far as the questions raised on this appeal are concerned the appellants may be referred to as “Midtown.”

Appellants contend that the trial court erred (1) in directing a verdict in favor of plaintiffs, (2) in denying the motion for a directed verdict in favor of the appealing defendants, and (3) in denying the motion made by the appealing defendants for judgment notwithstanding the verdict.

The testimony of a salesman employed by Midtown shows that the latter has a main office at Van Ness Avenue and O’Farrell Street in San Francisco, where its records, papers and money are kept, and a block away at Van Ness Avenue and Ellis Street has a used car lot, with a suboffice for negotiating sales. Both offices are open between 8:30 a. m. and 6 p. m. On the afternoon of November 26, 1945, defendant Feuerhelm,

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a U. S. Navy enlisted man, who desired to purchase a car, and two other sailors, entered Midtown's used ear lot. The general manager of Midtown Motor Sales Company stated in his deposition : ‘1 The purpose of buying the car was for the purpose of traveling to his home in Harper’s Ferry, Iowa, from San Francisco, being discharged from the Navy and taking his mileage, rather than being shipped home.” The salesman testified that he showed the sailors a Ford, which was purchased, and that he accompanied Feuerhelm to the main office where “the papers” were filled out. The bill of sale shows payment in full of $303.38 cash, made up as follows: Price, $295; license transfer, $1.00; sales tax, $7.38. It is dated November 26, 1945, and at the bottom states, “Received copy Cert, of transfer, invoice,” signed, “Carl S. Feuerhelm.” A power of attorney was signed by Feuerhelm and witnessed by the salesman. The form of the power of attorney, dated November 26, 1945, reads in part: “Not Valid Unless Properly Witnessed by a Disinterested Person.” The body of the document appoints and creates the “Midtown Motor Sales Co., to act as my attorney in fact, to sign all papers and documents that may be necessary in order to secure California registration, or that may be necessary to effectuate a transfer of ownership on the following vehicle ...” On the reverse side is the filing stamp of the Motor Vehicle Department, dated November 29, 1945, three days after the accident. The power of attorney was signed and witnessed in blank, which was the customary practice of the company. No conversation occurred between the salesman and Feuerhelm relative to the power of attorney or the pink slip. The salesman had never turned over a pink certificate to a purchaser.