Goggin v. Reliance Ins. Co.

• Decision Date: 16 February 1962
• Citation: 19 Cal.Rptr. 446,200 Cal. App. 2d 361
• Court: California Court of Appeals
• Parties: John E. GOGGIN, Plaintiff, Cross-Defendant and Appellant, v. Louis Silvas, etc., et al., Defendants, RELIANCE INSURANCE COMPANY, a corp., Defendant, Cross-Complainant and Respondent. Civ. 19934.

Page 446

19 Cal.Rptr. 446

200 Cal.App.2d 361

John E. GOGGIN, Plaintiff, Cross-Defendant and Appellant, v.Louis Silvas, etc., et al., DefendantsRELIANCE INSURANCE COMPANY, a corp., Defendant, Cross-Complainant and Respondent.

Civ. 19934.

District Court of Appeal, First District, Division 2, California.

Feb. 16, 1962.

Rehearing Denied Feb. 27, 1962.

Molinari, Casalnuovo & Berger, San Francisco, for appellant.

Sedgwick, Detert, Moran & Arnold, San Francisco, for respondentReliance Ins. Co.

KAUFMAN, Presiding Justice.

This is an appeal from a judgment of nonsuit entered against the plaintiff, John E. Goggin, in his action against the defendant, Reliance Insurance Company, on a bond issued by it to Louis Silvas as principal, in accordance with section 11711 of the Vehicle Code.The complaint alleged that plaintiff, a licensed automobile dealer in San Francisco, bought two vehicles from Silvas, a licensed automobile dealer in Palo Alto, for a total price of $4490.As the bills of sale indicated that the vehicles were free from all liens and encumbrances, plaintiff resold the vehicles and guaranteed title to the purchasers.Thereafter, plaintiff learned from the Department of Motor Vehicles that both cars were in fact encumbered and was forced to pay a total of $3781.41 to clear the titles.

Silvas confessed judgment as to the above amount without admitting any fraud in the transaction, and judgment against him was duly entered by stipulation.No appeal has been taken from that judgment.The only question on appeal is the propriety of the judgment of nonsuit in favor of the respondent insurance company under the circumstances of this case.Appellant contends he established a prima facie case of respondent's liability under the statute.

The evidence adduced indicated that this action was based on two bills of sale signed by Silvas; one dated January 29, 1960, and relating to the 1959 Dodge; the other, dated February 12, 1960, relating to the 1958 Mercury.The entire transaction was handled by Angelo Pellegrini, the plaintiff's general manager, who paid by check for each vehicle.As the vehicles in question were a part of several similar contemporaneous transactions between the parties, plaintiff, on January 29, 1960, paid $8500 for the Dodge and other vehicles, and on February 12, 1960, paid $3425 for the Mercury and other vehicles.Certain payments made by Silvas to the plaintiff during this time also related to the vehicles not in issue here.Plaintiff received the 1959 Dodge and 1958 Mercury when the checks were delivered.When Pellegrini requested the pink certificates of ownership at the time of delivery, he was informed that Silvas was in the process of obtaining them.

Pellegrini testified that both of the bills of sale were signed later than the date shown, and were executed in blank by him, including the portion relating to encumbrances.Pellegrini stated that it was an industry custom to sign bills of sale in blank so that the dealer could acquire the bill of sale at the earliest possible moment to establish documentary proof of ownership with the Department of Motor Vehicles and thus facilitate resale.Both bills of sale were presented by him to Silvas for signature after the dates shown and were signed sometime between February 18 and March 8, 1960, when plaintiff learned of the prior encumbrances.

Silvas, testifying under section 2055 of the Code of Civil Procedure, stated that he knew the vehicles were encumbered at the time of the sale, and that he had told the individual who picked up one of them that there was a 'payoff' of $1850; he further testified that his company had sent a check to take care of the amount due, but the check was not accepted because of a dispute as to the amount.On hearing the above evidence, the trial court granted respondent's motion for a nonsuit.

"The granting of a motion for a nonsuit is warranted '* * * when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff."'(San Francisco Hotel Co. v. Baior, 189 Cal.App.2d 206, 208, 11 Cal.Rptr. 32, 33, quoting fromRaber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574).In considering a judgment of nonsuit, neither the trial court nor the appellate court may weigh the evidence or consider the credibility of witnesses.Rather, the plaintiff's evidence must be given full prima facie value.The plaintiff may rely on that portion of testimony given under section 2055 of the Code of Civil Procedure which is favorable to him and disregard the unfavorable portions.However, the evidence produced by plaintiff must support a logical inference in his favor, sufficient to raise more than a mere conjecture or surmise that a fact is alleged in order to warrant submission of the question to a jury, and a court should not put itself in the incongruous position of destroying logic to hold a case in court(Reynolds v. Natural Gas Equipment, Inc., 184 Cal.App.2d 724, 731, 7 Cal.Rptr. 879).It is in the light of these principles and the applicable statute, that the evidence must be reviewed.

The parties here stipulated that the bond was issued in accordance with section 11711 of the Vehicle Code¹ which provides, so far as relevant: '(a) If any person shall suffer any loss or damage by reason of any fraud practiced on him or fraudulent representation made to him by a licensed dealer or one of such dealer's salesmen acting for the dealer, in his behalf, or within the scope of the employment of such...