Anderson v. Wagnon

• Decision Date: 12 April 1952
• Citation: Anderson v. Wagnon, 110 Cal.App.2d 362, 242 P.2d 915 (Cal. App. 1952)
• Court: California Court of Appeals
• Parties: ANDERSON v. WAGNON et al. Civ. 8020.

Page 915

242 P.2d 915

110 Cal.App.2d 362

ANDERSON v.WAGNON et al.

Civ. 8020.

District Court of Appeal, Third District, California.

April 12, 1952.

Palmer & York, Calistoga, for appellant.

DeCastle & Eymann, Santa Rosa, for respondent.

SCHOTTKY, Justice pro tem.

Plaintiff brought an action to recover damages for personal injuries sustained on June 21, 1944, as a result of the alleged negligent operation of an automobile operated by defendant Wagnon.It was alleged that the automobile was under the control of defendant Marshall, and owned by defendant Clark; and that Marshall was operating the automobile 'with the knowledge, consent, permission and authority of defendant Clark.'

The cause was tried by the court, sitting without a jury, and the court found (1) that 'the defendantHarry Spencer Wagnon was driving said automobile under the express direction and control, and for the use and purpose of defendantFlorence Marshall'; and (2) that 'defendantHarry Spencer Wagnon was driving the said automobile with the knowledge, permission, consent and authority, express or implied of the defendantMrs. B. H. Clark, Sr.'Judgment was entered in favor of plaintiff in the sum of $12,500, except that recovery against defendant Clark was limited to $5,000, the statutory liability limit pursuant to section 402 of the Vehicle Code.Defendant Clark has appealed from the judgment.

The sole question involved in this appeal is appellant Clark's liability under section 402 of the Vehicle Code, which section makes the owner of an automobile liable for its negligent operation by another person with 'the permission, express or implied' of the owner.Appellant contends that the evidence is insufficient to support the court's finding that the automobile was being used with her permission at the time of the accident.

It is a rule too well established to require the citation of authorities that, before an appellant tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence adduced, together with every inference favorable to the prevailing party which may be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes such prevailing party from recovering a judgment.The evidence must be construed most strongly against the losing party.Every favorable inference and presumption which may fairly be deduced from the evidence should be resolved in favor of the prevailing party.The prevailing party's evidence must ordinarily be accepted as true, and evidence which is contradictory must be disregarded.With this familiar rule in mind, we shall give a brief summary of the evidence as shown by the record.

Appellant Clark became the owner of an auto court in Calistoga, California, following the death of her husband, January 7, 1943.She did not live at the auto court after her husband's death.Her son, a minor, lived at the court and managed it.In March, 1943, the son purchased the automobile in question.The registration certificate was made out in appellant's name, following her written application therefor.The appellant provided $200 for the purchase, and her son added approximately $50.Regarding her part in the purchase of the automobile, appellant testified: 'I gave my youngest son money as a gift and he had always worked for my husband very well; we sent him to school and don't know what wages he had but he always paid out for his expenses and lived at home and he was working for my husband.So having some money and an extra check from the brotherCharles Clark, an extra check coming in to help my husband long before he passed away from his brother, so I gave that check to my son Charles to purchase an automobile--Charles Franklin Clark.'

Appellant's son entered the army on April 28, 1943.The automobile remained at the auto court.In May, 1943, defendant Marchall, appellant's daughter, moved into the auto court.Appellant testified that this move was made without her knowledge or permission.Appellant further testified: 'Q.After you had found them to be in possession of the property did they make any arrangement with you relative to the management of the property or the payment of rentals to you or anything of that sort?A.Well, in case they had rented the cabins I may have told them to give me something but I don't think they were renting them much or whether they had anything but in case they did, I might have asked them.'

Defendant Wagnon was living at the auto court at the time of the accident.He testified that defendant Marshall used the automobile all the time, and that he had no recollection of any other car being on the premises; that defendant Marshall replaced the tries; that he drove the car a number of times and that defendant Marshall gave him the keys when he drove it.

Appellant Clark testified that she did not drive; that someone informed her that the car was in her name; that 'I think I have probably told my daughter perhaps not to drive it--I might have told her, I don't know.I am not sure whether I did'; that her daughter did not tell her that she was using the car; that she never saw the daughter use the car; and that she had no reason to believe she was using the car.

Appellant's son testified that his sister, defendant Marshall, asked his permission to use the car and he refused; and that he instructed her to put the car in storage.

During the period the premises were occupied by appellant's daughter, the appellant visited the auto court.She visited at least once a month in 1943 and less frequently in 1944.Her last visit was three or four days prior to the accident.

The highway patrol officer testified that the registration slip showed registration to defendant Marshall.Defendants' Exhibit introduced at page 121, a certified copy of the records of the Motor Vehicle Department, shows the car to have been registered to appellant at the time of the accident.

On the day of the accident, defendant Marshall drove the car to Santa Rosa from the auto court in Calistoga.She was accompanied by defendant Wagnon.The accident occurred on the return trip.Wagnon was operating the vehicle.According to Wagnon, defendant Marshall was intoxicated and asleep.

There was no direct testimony that appellant Clark consented to defendant Marshall's driving the automobile, nor was there any testimony that appellant was present when either defendant Marshall or defendant Wagnon was driving it.

In arguing that the evidence is insufficient to show that the automobile was operated with the consent of the owner, appellant asserts that her evidence is not contradicted and that such evidence shows that she did not give her express consent and that she had no knowledge prior to that accident that the automobile was used by her daughter, the defendant Marshall, or by defendant Wagnon.We doubt the correctness of this assertion of appellant and believe it is contradicted by the evidence in the record, with the inferences which may reasonably be drawn therefrom.But even if appellant were correct in stating that there was no evidence to show her express consent and knowledge, we agree with respondent's contention that such facts were peculiarly within the knowledge of defendants, and that implied permission to use an automobile may be found even where the owner and permittee expressly deny that permission was given.

The following language of the court in Casey v. Fortune, 78 Cal.App.2d 922, at page 924, 179 P.2d 99, at page 100, is applicable:

'Even though the testimony of the owner and the driver of the automobile was uncontradicted, the trial judge was not required to accept it.Appellant's answers were evasive as to whether she had knowledge, prior to the night of the accident, that Robert had been driving the automobile.While prior knowledge is not a necessary element of implied permission (Burgess v. Cahill, 26 Cal.2d 320, 324, 158 P.2d 393, 159 A.L.R. 1304), the evidence was sufficient to support a finding that appellant did have knowledge prior to the accident that Robert had been driving her automobile.Although she said that she'didn't want' him to drive the automobile and she had told him the reason why she didn't want him to drive it, and although the circumstances with respect to his prior use of the automobile were such that she should have suspected that he had disobeyed her, she did nothing further on the night of the accident to prevent him from using the automobile.On the contrary, she continued to keep the keys where they were easily obtainable by him, 'in plain view, on the buffet where 'We always keep our keys.'The court may have concluded that, under the circumstances, the keeping of the keys in such an accessible place refuted her testimony that he was told not to use the automobile.'

And in Flemmer v. Monckton, 73 Cal.App.2d 271, at page 275, 166...