Caccamo v. Swanston

• Citation: 94 Cal.App.2d 957,212 P.2d 246
• Court: California Court of Appeals
• Decision Date: 08 December 1949
• Parties: CACCAMO et al. v. SWANSTON et al. VIGNOLA v. SWANSTON (CACCAMO, Intervener). Civ. 14090.

Page 246

212 P.2d 246

94 Cal.App.2d 957

CACCAMO et al. v. SWANSTON et al.

VIGNOLA v. SWANSTON (CACCAMO, Intervener).

Civ. 14090.

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

Dec. 8, 1949.

Rehearing Denied Jan. 7, 1950.

Hearing Denied Feb. 2, 1950.

Hoffman & Draper, San Mateo, for appellants.

Thomas H. Matimore, Nathan C. Coghlan, San Francisco, for respondents.

BRAY, Justice.

Plaintiff Joseph Caccamo sued defendant Ruth Swanston for personal injuries. In a second cause of action plaintiff Rose Vignola as surviving widow sued defendant Ruth for damages for the death of her husband Silvio Vignola. Katie Vignola, mother of Silvio, filed a complaint in intervention asking damages of both defendant Ruth and plaintiff Caccamo. A jury awarded plaintiff Caccamo damages in the sum of $15,000 against defendant Ruth, and plaintiff Rose Vignola and plaintiff in intervention Katie Vignola the sum of $10,000, also against Ruth. The jury found in favor of plaintiff Caccamo as against the charge of negligence in the complaint in intervention. From the judgment entered on these verdicts defendant Ruth appeals.

Principal Questions.

The principal question is whether defendant Ruth was a co-owner of the automobile driven by her husband in the accident which caused injury to plaintiff Caccamo and the deaths of Charles Swanston, the husband of Ruth, and of Silvio Vignola.

Facts.

At about 10 p. m. on January 6, 1946, a head-on collision occurred on El Camino Real just inside San Carlos, between a car driven by Charles Swanston, in which he was riding alone, and a car driven by Joseph Caccamo, in which Silvio Vignola, the owner of the car, was riding. Both Charles Swanston and Silvio Vignola were killed in the accident. Plaintiff Caccamo received serious injuries. The car driven by Swanston ran into the Vignola car on Swanston's wrong side of the highway. As defendant makes no contention that the evidence is insufficient to show Swanston's negligence, it is unnecessary to discuss the details of the accident.

Resolving conflicts in favor of plaintiffs, as we are required to do, the evidence shows the following on the question of the ownership of the Swanston car and the consent of Ruth to its being driven by her husband while in an intoxicated condition: Charles and Ruth Swanston were married in 1939. Charles bought the car, an Oldsmobile, in 1943. The certificate of ownership then issued showed Charles as registered owner and General Motors Acceptance Corporation as legal owner. When the finance company was paid off (from what funds does not appear) the 'pink slip' was delivered to Charles. Both he and Ruth signed it and sent it to the Department of Motor Vehicles for transfer of ownership. Ruth testified that she could remember no discussion at that time as to why she signed, or as to the way in which the title would be held. The new certificate, dated April 17, 1944, named Charles as registered owner and both Charles and Ruth as legal owners.

About noon Sunday, the day of the accident, Charles and Ruth left home in their car. They stopped at several bars. Charles become intoxicated. They ate dinner and Charles drank some more at a place called Kelly's. They left Kelly's with a Miss Wilson and drove to a place called Pete and Mary's. Ruth stated that she did not want to go in there. The two women got out of the car. Ruth again repeated that she did not want to enter Pete and Mary's and told Charles that he could do what he pleased. The two women walked away, leaving the intoxicated Charles in the car, the motor running. Shortly thereafter the accident happened.

Ownership of Car.

There were initially several theories upon which plaintiff might have recovered: (1) Ruth was an owner of the car and was liable for the negligence of Charles, who drove with her consent. Vehicle Code § 402. The jury apparently did not use this basis of liability, since it awarded damages greater than the statute allows. (2) Ruth was liable for the negligence of Charles on an agency basis, since the accident occurred while Charles was engaged in partnership activities. The evidence relating to this theory will be discussed hereafter. (3) Ruth was herself negligent in consenting to the use of the car, of which she was a co-owner, by Charles, who was obviously intoxicated. '* * * one who knowingly permits an unfit driver to use his automobile is liable for damages caused by the negligent acts of the unfit driver in the operation of the car.' McCalla v. Grosse, 42 Cal.App.2d 546, 550, 109 P.2d 358, 360; Knight v. Gosselin, 124 Cal.App. 290, 12 P.2d 454 (intoxicated driver). This last theory raises fact issues as to co-ownership and consent, as well as intoxication known to Ruth. If she was a co-owner with her husband, the latter, in order lawfully to have 'its exclusive possession and usage for a time, would need [her] permission, express or implied * * *.' Krum v. Malloy, 22 Cal.2d 132, 135, 137 P.2d 18, 20. If the car was community property the wife's consent to its use by the husband could not be required nor could she prevent his using it, and therefore she would not be liable for his negligence. Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260.

In People v. One 1941 Buick Club Coupe, 72 Cal.App.2d 593, 165 P.2d 44, there is language which seems to hold that the consent of a co-owner of an automobile is not required for its use by the other co-owner. However, the court does not attempt to distinguish the ruling to the contrary in Krum v. Malloy, supra, 22 Cal.2d 132, 137 P.2d 18, and many other cases. The Buick case was one involving the forfeiture under the provisions of the Health and Safety Code of an automobile being used by a co-owner for the transportation of marihuana, and its ruling on the subject should be confined to matters involving use of the automobile in the narcotic traffic. As said in People v. One 1941 Ford 8 Stake Truck, 26 Cal.2d 503, 507-508, 159 P.2d 641, 643: 'Clearly shown by the terms of section 11610 et seq. is a legislative policy that the vicious traffic in narcotics, with its disastrous effect upon the unfortunate members of society, is so great an evil as to justify the drastic penalty of confiscation of vehicles used to transport the contraband. The public interest to be protected against the drug and its victims outweights the loss suffered by those whose confidence in others proves to be misplaced, and although, in some cases, hardship may result from the enforcement of the statute, no constitutional guarantees are invaded.'

The ruling in the Krum case has been followed and approved in Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1, decided subsequent to the Buick case.

Practically the only evidence of ownership of the car was the certificate of registration which gave Charles and Ruth as 'legal owners.' They were not the 'legal owners' mentioned in section 67 of the Vehicle Code which defines 'legal owner' as 'a person holding the legal title to a vehicle under a conditional sale contract, the mortgagee of a vehicle,' etc. They were, however, the owners. Section 66 of the Vehicle Code describes the owner as, among others, a 'person having all the incidents of ownership, including the legal title of a vehicle'. The indicia of title here was the certificate of registration. Section 164 of the Civil Code provides, in part: '* * * whenever any real or personal property * * * is acquired by a married woman by an instrument in writing, the presumption is that the same is her separate property, and if acquired by such married woman and any other person the presumption is that she takes the part acquired by her, as tenant in common, unless a different intention is expressed in the instrument', with a certain exception not applicable here. Title passes by endorsement of the certificate and compliance with section 186 of the Vehicle Code. The fact that the car was originally purchased by Charles, and that later Charles and Ruth both endorsed the certificate on line 9 (as to which the certificate states 'A new legal owner must sign on line 9') and thereby Charles brought into being an instrument in writing evidencing title in both himself and Ruth, raises a presumption that she took the part acquired by her as a tenant in common. The certificate is evidence of title, although not conclusive on the subject. No evidence was presented to overcome this presumption. This presumption threw the burden on defendant of proving that she was only the 'legal owner' as defined in section 67 or that the property was community property. This defendant made no effort to do, contending that the entire burden was on plaintiffs. Primarily it was, but the burden shifted when the presumption arose.

In Graf v. Harvey, 79 Cal.App.2d 64, 179 P.2d 348, 352, it was stipulated that stockwell, Sr. was the legal owner and that Stockwell, Jr. was the registered owner. The stipulation then set forth that the car was purchased from Stockwell, Jr.'s earnings and that the car was left by him with his father while he was on duty with the Marines. It was further stipulated that Stockwell, Sr. was not the holder of a mortgage on the car or of a contract of sale. The court held that these 'stipulated facts were contradictory'; that 'The stipulation that Stockwell, Sr. was the legal owner, whatever it might mean, was not a stipulation that he held the legal title or that he was the 'owner' within the meaning' of the Vehicle Code. The reason given was that 'a 'legal owner,' namely, a conditional vendor, before he has repossessed the vehicle, or a mortgagee out of possession, is not deemed an owner under the liability provisions of the section.' 79 Cal.App.2d p. 70, 179 P.2d page 352. This case is not authority for the proposition, under the facts of the case at bar, that the transfer of the certificate of ownership to the joint names did not prima facie indicate co-ownership.

Instructions on Ownership.

Defendant contends...