Swaney v. Black

California Court of Appeal May 11, 1938 No. Civ. 11777Published

Before: McCOMB

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Holding. The court held that the respondent was not liable for personal injuries caused by the vehicle because, under the California Vehicle Code, the respondent was not deemed the owner of the vehicle at the time of the accident.

Issues

Whether the trial court's findings of fact were supported by substantial evidence when the record on appeal was incomplete.
Whether finding of fact No. VII conflicted with the finding that the driver lacked the respondent's permission.
Whether the respondent was liable as an owner under Section 402 of the California Vehicle Code.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The law is settled that an appellate court will not consider the question of the sufficiency of the evidence to sustain findings of fact unless all of the evidence before the trial court is included in the record on appeal.”

McCOMB, J.

There are presented for determination:

(1) A motion to affirm the judgment or dismiss the appeal on the ground that appellant has failed to conform to the requirements of Rule VIII, Rules for the Supreme Court and District Courts of Appeal (213 Cal. xlvi) and section 953a, Code of Civil Procedure, and

(2)

An appeal from a judgment in favor of respondent after trial before the court without a jury in an action to recover damages for personal injuries.

In view of the conceded fact that a judgment roll is on file, the motion to dismiss the appeal must be denied.

(Pacific Gas & Elec. Co.

v. Scott, 10 Cal. (2d) 581 [75 Pac. (2d) 1054].)

The trial court found the following facts:

June 20, 1936, Charles W. Porter, doing business as “Certified Service Inc.”, sold a Plymouth coupe to Grace Black under a conditional contract of sale. This contract on June 30, 1936, was assigned by Mr. Porter to respondent. October 27, 1936, without obtaining a reassignment of the conditional sales contract from respondent, Mr. Porter repossessed the automobile for failure of Grace Black to comply with its terms. He thereafter, on November 4, 1936, by a conditional sales contract, purported to sell the car to Robert H. Senter. November 10, 1936, while Mr. 'Senter was driving the car without the express or implied permission of respondent an accident occurred, causing personal injuries to plaintiff.

[316]

November 14, 1936, Mr. Porter assigned his contract with Robert H. Senter to respondent.

In addition to the foregoing facts the trial court made the following finding:

“VII

“That James E. Graham, as Secretary of the Beverly Finance Company, a corporation, did cause an affidavit of repossession, which affidavit was sworn to before a Notary Public, to be filed with the Department of Motor Vehicles, Division of Registration, of the State of California, on the 16th day of November, 1936, stating that on the 27th day of October, 1936, the Beverly Finance Company, a corporation, did repossess the said 1935 Plymouth Coupe automobile, 1936 License No. 4 R 7616, from Grace Black, and that the said automobile was in the possession of the said corporation, and did forward the pink slip to said automobile with the affidavit, to Sacramento, and that there was issued, on the 2nd day of December, 1936, by the Department of Motor Vehicles, Division of Registration, of the State of California, a new pink slip of title, showing Robert H. Senter, 2834 Whittier Blvd., Los Angeles, to be the registered owner, and the Beverly Finance Company, a corporation, 461 So. Western Avenue, Los Angeles, to be the legal owner. ’ ’

Swaney v. Black

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