Schefke v. Superior Court, In and For City and County of San Francisco

• Citation: 289 P.2d 542,136 Cal.App.2d 715
• Decision Date: 03 November 1955
• Docket Number: No. 16841,16841
• Parties: Paul J. SCHEFKE, Petitioner, v. SUPERIOR COURT of The State of California, IN AND FOR The CITY AND COUNTY OF SAN FRANCISCO, Honorable Frank T. Deasy, Judge thereof, Honorable Martin Mongan, County Clerk of the City and County of San Francisco, and Mabel S. Brughelli and David Brughelli, Respondents.
• Court: California Court of Appeals

Page 542

289 P.2d 542

136 Cal.App.2d 715

Paul J. SCHEFKE, Petitioner, v. SUPERIOR COURT of The State of California, IN AND FOR The CITY AND COUNTY OF SAN FRANCISCO, Honorable Frank T. Deasy, Judge thereof, Honorable Martin Mongan, County Clerk of the City and County of San Francisco, and Mabel S. Brughelli and David Brughelli, Respondents.

No. 16841.

District Court of Appeal, First District, Division 1, California.

Nov. 3, 1955.

Healy & Walcom, San Francisco, for petitioners.

Ryan & Ryan, San Francisco, for respondent & real party in interest.

BRAY, Justice.

In an action for damages for injuries alleged to have been received by plaintiff Mabel S. Brughelli against petitioner Paul J. Schefke, when petitioner, a resident of Oregon vacationing in California, backed his automobile into plaintiff on the premises of Standard Stations, Inc., at Lombard and Pierce Streets, San Francisco, petitioner was served as a nonresident pursuant to the provisions of section 404, Vehicle Code. He appeared specially to challenge the jurisdiction of the trial court. That court determined that the service was valid. Petitioner then filed this petition for writ of prohibition or certiorari or mandate. ¹

Question Presented.

Where a nonresident's motor vehicle is on service station premises in this state to be serviced and there causes an accident, is such accident, under the provisions of section 404, Vehicle Code, one 'resulting from the operation of any motor vehicle upon the highways of this State * * *'?

Law Applicable.

Section 404, Vehicle Code, provides: 'The acceptance by a nonresident of the rights and privileges conferred upon him by this code or any use of the highways of this State as evidenced by the operation by himself or agent of a motor vehicle upon the highways of this State * * * is equivalent to an appointment by such nonresident of the director or his successor in office to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against said nonresident operator or nonresident owner growing out of any accident or collision resulting from the operation of any motor vehicle upon the highways of this State by himself or agent'. (Emphasis added.)

The only case in this state considering the meaning of the words 'operation * * * upon the highways' is McDonald v. Superior Court, 43 Cal.2d 621, 275 P.2d 464. There a resident of Oregon was engaged in California in the business of renting trucks and trailers. The plaintiff rented from him a truck to transport furniture to his home. He parked the truck partially on the street and partially on the sidewalk and proceeded to unload it. Due to a defective condition, he was injured when a rack on the truck broke. It was contended that unloading was not part of the operation of the vehicle. The court held that renting a truck for immediate use upon the highways constituted an 'operation' of the truck, within the meaning of section 404, and that, under that section the 'normal operation of a vehicle includes more than its movement over the highway', 43 Cal.2d at page 624, 275 P.2d at page 466, and included unloading. 'Although the meaning of the word 'operation' in section 404 has not been litigated in this state, in other contexts, contrary to decisions in other states [citations], it has been interpreted to include more than the actual physical driving of a vehicle on the highway. [Citations.] The renting of a vehicle for immediate use clearly constitutes the initiation of its operation and, in the event the vehicle is defective, the creation of an unreasonable risk of harm to the lessee and third parties. The statute does not require that the accident occur during the time that the vehicle is being operated by the nonresident or his agent. It is enough that the accident results from such operation. When, as in this case, the accident would not have occurred but for the negligent renting of a defective vehicle, it clearly resulted from such renting. To hold that such renting does not constitute operation would defeat the legislative purpose of making nonresidents who use our highways in their business amenable to suits in this state. To interpret operation to include such renting is both consistent with the terms of the statute and subserves its purpose. We conclude therefore that petitioner's agents operated the truck within the meaning of the statute when they rented it for immediate use upon the highways of this state. [Citations.]

'Petitioner contends, however, that an accident occurring during unloading is not the type of accident intended to be covered by section 404. We cannot agree with this contention. It has frequently been recognized that the normal operation of a vehicle includes more than its movement over the highway. [Citations.] There is nothing in the statute that limits its operation to any particular types of accidents or collisions. By its express terms it is applicable to 'any action * * * growing out of any accident or collision resulting from the operation of any motor vehicle upon the highways of this State by himself or agent.'' 43 Cal.2d at pages 624-625, 275 P.2d at page 465.

In other contexts California has been liberal in its interpretation of the word 'operation.' Thus in Sutton v. Tanger, 115 Cal.App. 267, 1 P.2d 521, it was held that the owner of a motor vehicle was 'operating' it although not present, and the driving was by a person to whom the owner's permittee had temporarily entrusted it. In Bosse v. Marye, 80 Cal.App. 109, 250 P. 693, it was held that a minor was 'operating' the automobile although it was being driven by another at the minor's request. In Union Tank Line Co. v. Richardson, 183 Cal 409, 191 P. 697, 699, it was held that a foreign corporation engaged in the acquiring of tank-cars and leasing them to shippers to use upon the railroads of this state, was "operating upon railroads" in California.

In McGuire v. Parker, D.C.Mo.1948, 78 F.Supp. 199, it was held that a person lending his car to minors was 'operating' it within the meaning of a statute providing for service of summons on a nonresident operating a motor vehicle within the state.

This liberality of construction does not obtain in some other jurisdictions. Thus in O'Tier v. Sell, 1930, 252 N.Y. 400, 169 N.E. 624, it was held that an owner was not 'operating' a motor vehicle when it was being driven by another even though with his permission. To the same effect, Brown v. Cleveland Tractor Co., 1933, 265 Mich. 475, 251 N.W. 557.

Other jurisdictions have held as did the court in McDonald v. Superior Court, supra, 43 Cal.2d 621, 624, 275 P.2d 464, 466, that 'the normal operation of a vehicle includes more than its movement over the highway.' Thus in Elfeld v. Burkham Auto Renting Co., 1949, 299 N.Y. 336, 87 N.E.2d 285, 289, in applying a statute making an owner liable for "negligence in the operation of * * * [a] motor vehicle" the court said referring to the above mentioned statute, 87 N.E.2d at page 290: '* * * it does not limit 'negligence in the operation' to the manner in which a car is driven but is broad enough to include an act of 'operation' such as the one here involved--putting a defective truck into operation on the highway.'

In Commonwealth v. Henry, 1918, 229 Mass. 19, 118 N.E. 224, L.R.A.1918B, 827, is was held that an automobile left standing on a highway after dark without lights was 'operated' within the meaning of a statute prohibiting the operation of an automobile at night on public streets without certain lights. 'The word 'operated' is not, as the defendant contends, limited to a state of motion produced by the mechanism of the car, but includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation.' 118 N.E. at page 225. To the same effect, Horton v. Benson, Tex.Civ.App., 1924, 266 S.W. 213.

In Stroud v. Board of Water Comm'rs, 1916, 90 Conn. 412, 97 A. 336, it was held that an automobile left in a part of the highway opposite a hotel which was commonly used for parking automobiles was in 'operation' under a statute denying recovery to the owner of an unregistered motor vehicle who has an accident "by reason of the operation of said motor vehicle in or upon the public highways * * *."

In Chiarello v. Guerin Special Motor Freight, 1952, 22 N.J.Super. 431, 92 A.2d 136, it was held that a truck parked entirely on the sidewalk was being 'operated' within the terms of a non-resident service statute. The court quoted from a case decided in 1889 before the advent of motor vehicles: "In order to be a traveler, it is not necessary that one should be constantly moving, if he is a pedestrian, or that the vehicle he drives, or that in which he is conveying goods, if he is using one, shall be continuously in motion. It would certainly be impossible to use the highways conveniently for the ordinary purposes of business or social life, with teams or lighter carriages, if occasional stops were not permitted to enable those using them to load and unload teams, to receive and deliver goods, to enter shops and stores, and to make brief calls of business, or even of a special character." 92 A.2d at page 139. Hand v. Frazer, 1931, 139 Misc. 446, 248 N.Y.S. 557, held that a truck parked by a highway was being 'operated' within the terms of tis nonresident service statute. In Brauer Machine & Supply Co. v. Parkhill Truck Co., 1943, 383 Ill. 569, 50 N.E.2d 836, 148 A.L.R. 1208 the court was considering whether the accident (the plaintiff was injured by the negligent unloading of a truck at a place off the highway) came within the purview of the Illinois nonresident service statute as constituting 'operation' of a motor vehicle on a highway of the state. In holding that unloading did not constitute operating the truck within the meaning of the statute, Bryant Truck Lines v. Nance, 1939, 199 Ark. 556, 134 S.W.2d 555, 556; ...