Rose v. Porter

MOORE, P. J.

The two actions for damages arising out of personal injuries suffered in the same accident were consolidated. for trial. Findings were made in each ease and separate judgments were entered against identical defendants. The appeals were consolidated on one record. In view of appellant’s stipulation that the evidence is sufficient to warrant the judgment against defendant Porter this discussion will be' directed to a consideration of the demands of appellant, Metalizing Company of America, in whose name the offending car was registered.

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The sole question for decision, therefore, is whether appellant as owner of the convertible coupe is liable for the damage it caused while in. the possession of defendant Bauer and being driven by defendant Porter. The significance of appellant’s claim of exemption from liability will appear as the movements of its machine are unfolded.

Defendant Bauer’s home is in North Hollywood which in

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general lies about 7 miles northwest of the business center of Hollywood. He operated a garage on Beverly Boulevard (which extends westward through the city of Los Angeles) and is located about 2 miles south of Hollywood Boulevard.

The convertible was kept in the possesssion of one Kunkler, an officer of appellant. He had in his employ a chauffeur, Prince Langon. During the nine months prior to the accident it was Prince’s practice under Kunkler’s orders to bring the coupe to Bauer’s garage for adjustments. Bauer had repaired its mechanical parts about three weeks prior to its fatal visit when Prince told, him that he had been driving it “to the ranch and it had been overheating . . . that I should road check the car ... to find out what was causing it to overheat.” Having worked on the machine very little during the day, Bauer left his garage about 8:15 p. m., drove the convertible to Gilmore Ball Park, drank two bottles of beer and drove south to Culver City. There he visited a saloon and consumed three drinks of whiskey. Thence he proceeded west to Sepulveda Boulevard on which he traveled 5 or 6 miles south. He was then about 14 miles from his garage. His declared purpose was to drive the car over a long distance that it might become overheated. He testified that he had no reason for going into strange places so remote from his garage other than to give the automobile a longer test; that he did not use it for personal business or call on anyone. He finally entered a drive-in, at an intersection on top of a hill at about 12 o’clock midnight for a cup of coffee and to obtain the directions to Washington Boulevard. He there encountered defendant Porter who with a young lady sat in an automobile alongside the convertible. After answering his inquiries, Porter volunteered to drive the night wanderer back to the boulevard. Porter and his companion occupied the driver’s seat and backed out of the driveway. Bauer was fatigued, “half asleep,” and had no recollection of any part of the roadway or of the events occurring as Porter drove to the point of the accident where the respondents were both injured by reason of Porter’s negligence.