Mucci v. Winter

BRAY, J.

Plaintiff was injured and his ear damaged when struck by an automobile owned by defendant Winter and being driven by one Williams.

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A jury returned a verdict of $6,000 in favor of plaintiff. Defendant appealed, claiming (1) that the evidence was insufficient to prove that he had given Williams permission, either express or implied, to drive the car; and (2) that one of the instructions was erroneous.

Pacts

As to most of the facts there is no conflict. The main conflict is in the inferences to be drawn from those facts. Defendant denied knowing Williams, ever having him in his car, ever allowing any person to drive his car. He also denied that any sailor ever took his car except the single unauthorized taking by Williams the night of the accident. As we are required to consider only the evidence most strongly in favor of plaintiff, we will disregard defendant’s testimony and that of his witnesses.

The sole evidence upon which the claim of permissive use is based is the testimony of Williams. He was a sailor, stationed at the San Bruno naval base. About a month and a half before the accident he met defendant, about midnight, at Pal’s Club, a bar in East Palo Alto. After about a half hour’s drinking, Williams asked defendant to take him to the base. Defendant allowed Williams to drive his car, with defendant along, back to the base, a distance of 12 or 15 miles. About a week later Williams again met defendant. After drinking together they proceeded to San Prancisco, with Williams driving defendant’s car. After spending the evening there they started back to the base, Williams still driving. In San Prancisco Williams saw a girl on a corner or in front of a café, got out of the car to talk to her, leaving de

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fendant in the car. Williams was afraid defendant might leave him, so without defendant’s observing him, took the key out of the ignition and then off defendant’s key ring and put it in his pocket, sticking another key on the same ring in the ignition. Defendant was “pretty high,” and did not see Williams remove the key. In about 10 minutes Williams returned with the girl. Defendant had started the engine. At Williams’ request, defendant got in the rear seat. Williams drove the girl to her home and then drove to the base. Oil leaving the ear Williams kept the key. Apparently defendant had not discovered its loss. Defendant then drove the car away. One night Williams asked defendant to use the car for a date, but could not “get any sense out of him. He talked in my favor and said we would talk it over later. ’ ’ Defendant never told him not to use the car.