Dahl v. Spotts

MARKS, J.

This is an action for damages brought by Milford W. Dahl, a minor, through his guardian

ad litem,

against Charles Spotts and Pernel Barnett for injuries received while he was riding as a guest of Spotts in a Ford delivery truck.. Barnett was the owner of the truck. The jury returned a verdict for $2,500 in favor of the minor, from which this appeal is taken, as well as from an order denying motion for judgment notwithstanding the verdict.

Spotts was the distributing agent for the “Liberty Magazine” in certain parts of Orange County. On July 9, 1930, he took respondent and several other boys from Santa Ana to neighboring towns where they sold magazines. At the close of their work he took them back to Santa Ana. He and respondent then drove to Orange, going to the home of Pernel Barnett where they obtained the Ford delivery truck, permission having been given by Barnett to Spotts for its use. The two again went to Santa Ana and Spotts drove to a freight storage office taking respondent with him. Here he loaded eight cartons of breakfast food on to the truck. These cartons were eighteen inches in each dimension and the sides of the truck body were between twelve and eighteen inches in height. Four of the cartons were placed on the truck bed and the other four on top of them so that the upper tier extended entirely above the sideboards of the truck body. Spotts asked respondent to sit in the back of the truck, watch the boxes and tell him if any of them slipped from position. He then drove from the freight office on to Fourth Street. While driving along this street two of the upper cartons commenced to slide from their position. Respondent informed appellant of .this and he stopped • the truck and adjusted the cartons, telling respondent to either stand on the floor of the rear end of the truck body holding on to the cartons, or to sit on the upper cartons in the rear tier. When the car reached

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French Street, Spotts made a right-hand turn and respondent and the two front cartons of the upper tier were thrown to the pavement, respondent receiving a fractured skull and bruises and contusions of his body. Respondent was eleven years of age at the time of the accident.

Appellants urge the following grounds for a reversal of the judgment: (1) “The evidence is insufficient to justify the verdict that the appellant, Charles Spotts, was guilty of gross negligence. (2) The evidence is insufficient to justify the verdict that the negligence of the appellant, Charles Spotts, proximately caused the happening of the accident. (3) The evidence is insufficient to justify the verdict that the appellant, Pernel Barnett, was the owner of the automobile.”