Burford v. Huesby

SPENCE, J. —

Plaintiff sought damages for personal injuries against defendants Huesby and Juett, the former being the operator of a certain Dodge automobile involved in the accident, and the latter being the owner thereof. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiff and against said defendants in the sum of $1570, defendant Juett appeals.

Defendant contends that the evidence was insufficient to sustain certain findings of the trial court in which it was found that defendant Huesby was acting as the agent of defendant Juett and that defendant Huesby was driving the

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automobile of defendant Juett with the permission of said defendant Juett. It is conceded, however, that if the evidence was sufficient to sustain the finding that defendant Huesby was driving defendant Juett’s automobile with the permission of the latter, the judgment should be affirmed. We are of the opinion that the evidence was sufficient for that purpose and we therefore deem it unnecessary to discuss the question of the sufficiency of the evidence to sustain the finding of agency.

Section 402 of the Vehicle Code imposes liability upon the owner of an automobile when the driver, whose negligent operation of the automobile caused the injury, operated the automobile “with the permission, express or implied, of such owner.” It is therefore apparent that the permission may be either express or implied and that evidence showing an implied permission is sufficient to sustain the above-mentioned finding and judgment.

Speaking of the word “implied”, it is said in Black’s Law Dictionary, third edition, page 924, “This word is used in law as contrasted with ‘express’; i. e., where the intention in regard to the subject-matter is not manifested by explicit and direct words, but is gathered by implication or necessary deduction from the circumstances, the general language or the conduct of the parties.” Defendant admits that “prior knowledge that the driver intends to use the car is not necessary to find an implied permission”, for as was said in

Phipps

v.

Shacklett,

137 Cal. App. 109, at page 111 [29 Pac. (2d) 917], “prior knowledge that the driver intends to so use the car is not necessary. That seems to be necessarily implied from the use of the words ‘express or implied’ in connection with the owner’s ‘permission’. ‘Express’ necessarily implies previous knowledge of the intended private use. ‘Implied’ must mean without such previous knowledge, but under circumstances from which consent to use the car is necessarily implied”.