Herbert v. Cassinelli

PEEK, J. This is an appeal by plaintiff from a judgment in favor of the defendant Sausmon. The action was one for personal injuries arising out of a collision between a car operated by plaintiff and one owned by said defendant but driven by the defendant Morris.

At the outset of the trial the action was dismissed as to the defendant Cassinelli; service of process on the defendant Morris could not be made within the State of California, and the action proceeded against Sausmon alone.

The evidence discloses that one Smith had his car stolen and wrecked and was in need of another car; that he talked with the defendant Sausmon, who operated a garage, and as an outgrowth of such conversation borrowed a Chevrolet pickup from him. According to Sausmon’s testimony the pickup was given to Smith for his personal use to try out with the thought of selling the vehicle to him. Smith testified to the same effect and added that the pickup was for his personal use and also for transporting personal supplies to and from the sawmill here he worked; that if the car proved satisfactory he would buy it. The record discloses no specific instructions by Sausmon limiting the use of the car by Smith. Sausmon’s testimony that “. . . I gave it to him to use personally ... I never gave him the car with the intention of anybody else using it,” creates nothing more than an inference that there existed an assumption of personal use by Smith only. No greater weight can be- attached thereto.

The court found that the accident was due solely to the negligent operation of the car by Morris, and that plaintiff’s operation of his car contributed in no way to the accident. The court further found that the defendant Sausmon did not know of the operation of the ear by Morris, and that such [663]operation was without either his express or implied permission.

There is no disagreement presented herein concerning the facts surrounding the accident nor the finding of the court in that regard. Therefore, the decision in this appeal must be predicated upon the provisions of section 402 of the Vehicle Code, which provides in part as follows:

“Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall, be imputed to the owner for all purposes of civil damages.”