Mize v. Jorden

[302]

BARNARD, P. J.

The minor plaintiff was injured on June 18, 1950, in a collision between a motorcycle on which he was riding and a truck driven by the defendant Jorden and owned by the defendant Johnson.

The complaint alleges that Jorden was driving the truck with the permission and consent of Johnson, which was denied in the answer. Jorden defaulted and the case went to trial against Johnson before the court without a jury. Judgment was entered in favor of the plaintiff and Johnson has appealed on the sole ground that the evidence is not sufficient to sustain the court’s finding that the truck was being operated with his permission or consent.

Citing such cases as

Herbert

v.

Lankershim,

9 Cal.2d 409 [71 P.2d 220], and

Hall

v.

Osell,

102 Cal.App.2d 849 [228 P.2d 293], the appellant contends that the only evidence of permissive use is found in the testimony of Jorden; that his testimony is obviously false and inherently improbable and should be disregarded; that his testimony thus becomes so unsubstantial as to furnish no reasonable support to the judgment ; and that a reasonable view of the testimony necessarily leads to the conclusion that the respondent failed to prove permissive use by a preponderance of the evidence. The respondent contends that the question of permissive use was one of fact; that an inference of permissive use arises from Jorden’s status as an employee of the appellant; that the credibility of the witnesses was á matter for the trial judge to determine; that there is no inherent improbability in the testimony of Jorden; and that the evidence was sufficient to support the finding in question.

Jorden testified that prior to June 18, 1950, he had used this truck about five or six times after working hours on his own personal business; that Johnson never said anything to him about this use or told him that he could not use it; that Johnson saw him with the truck on one occasion when he was “just socializing,” and Johnson never said anything about it; that about a week before the accident Johnson told him he could use the truck on the day of the accident to go swimming at a park; that he had seen the other truck drivers who worked for Johnson use the trucks on their own business “lots of times”; that he had seen the other drivers use the trucks for “joy-riding” when Johnson was right there; and that he did not know whether Johnson had told the other - drivers, at meetings, not to usé the trucks “but he never did tell me that.” He further testified that he used the truck to haul some potatoes on the morning of June 18,