Coleman v. Fitzgerald

TAYLOR, J.

This is an appeal from a summary judgment in favor of defendant, Walter F. Fitzgerald, in plaintiffs’ action for the wrongful death of their son, who died as the result of bodily injuries sustained on November 1, 1961, in an accident involving a 1958 Ford automobile driven by John E. Thompson and formerly owned by defendant.

Defendant’s affidavit in support of his motion for a summary judgment indicated that on May 16, 1961, he was the registered owner of the automobile but on that date transferred it to Fred Dobrozensky; that he delivered the automobile and the certificate of ownership (known as the “pink slip”) and registration card (known as the “white slip”) to Dobrozensky, who delivered the certificate of ownership with the proper transfer fee to the Eureka branch of the State Department of Motor Vehicles (hereafter Department) on the same day; and that since that date, defendant had no ownership, custody, care or control of the automobile. His affidavit was accompanied by a photostat of the pink slip and certification from the Eureka office of the Department indicating that its records showed a transfer application for the vehicle dated May 16, 1961, received by the Eureka office on that day, and that its records indicated that transfer was made to Fred R. Dobrozensky.

Plaintiffs’ counter affidavit filed by their counsel, Jordan N. Peckham, did not deny the transfer of the automobile from defendant to Dobrozensky but averred that there was evidence from which an inference might be drawn by the jury that the pink slip was not delivered to the Department until after the accident in question. This evidence consisted of the California Highway Patrol report of the accident indicating that defendant was still the owner of the automobile based on the presence of the white slip in the vehicle at the time of the accident, and a letter from the Department’s office in Sacramento dated February 26, 1962, stating that the registered owner of

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the vehicle in question was Walter E. Fitzgerald, Jr., and there was no record of any transfer in the file in that office. The trial court excluded the latter document on the basis of hearsay.

Plaintiffs’ major contention on appeal is that the trial court erred in excluding the document from Sacramento indicating that defendant was still an owner of the automobile at the time of the accident and that if properly admitted, this evidence would establish the existence of a triable issue of fact.