Gorham v. Taylor

• Citation: 176 Cal.App.2d 600,1 Cal.Rptr. 546
• Court: California Court of Appeals
• Decision Date: 23 December 1959
• Parties: Larry GORHAM, a minor, etc., et al., Plaintiffs and Appellants, v. Oscar TAYLOR et al., Defendants and Respondents. Civ. 6206.

Page 546

1 Cal.Rptr. 546

176 Cal.App.2d 600

Larry GORHAM, a minor, etc., et al., Plaintiffs and Appellants, v. Oscar TAYLOR et al., Defendants and Respondents.

Civ. 6206.

District Court of Appeal, Fourth District, California.

Dec. 23, 1959.

Brumer & Hopson, Beverly Hills, for appellants.

Schell, Delamer & Loring, Los Angeles, for respondents.

MONROE, Justice pro tem.

The plaintiffs brought this action to recover damages for personal injuries alleged to have been received as the result of a collision between a motorcycle operated by the plaintiff Robert J. Allen, and an automobile operated by the defendant Walter L. Collins. It was alleged that Collins was guilty of negligence which was the proximate cause of the collision. Joined as defendants were Timothy Lincourt, Oscar Taylor, and Orange Coast Car Specialties. It is alleged that the last named defendants were the owners of the car operated by defendant Collins.

The defendant Oscar Taylor moved for a summary judgment upon the ground that, doing business as Orange Coast Car Specialties, he had sold the automobile to defendant Collins and had complied with the requirements of the Vehicle Code regaring such sale, and was therefore not responsible under Section 402 of the Vehicle Code. This motion was granted and a judgment rendered in favor of defendant Taylor, from which judgment the plaintiff appealed.

In support of the motion, affidavit was filed establishing that on March 4, 1958, he purchased the automobile from Timothy Lincourt in the course of his business as a car dealer under the name of Orange Coast Car Specialties, that thereafter, on March 6, he sold the automobile to defendant Collins and delivered possession thereof and that on the same day he mailed to the Motor Vehicle Department a dealer's notice as provided by the Vehicle Code. By further affidavits it was established that this notice was received by the Vehicle Department on the 10th day of March. The accident in question took place on March 16. Copies of certificates of ownership revealed that the car had been registered in the name of Eugene D. Surprenant, Jr., that in January of 1958 he had transferred the same to Mesa Auto Wreckers and application for transfer by them to Timothy Lincourt was dated February 4, 1958. The application for transfer to Lincourt was in possession of the Motor Vehicle Department at the time the automobile was purchased and sold by defendant Taylor.

The appellant contends that a summary judgment was improperly granted in that there existed a triable issue and contends, further, that the provisions of Section 178 of the Vehicle Code had not been complied with and that respondent Taylor is thereby estopped to deny ownership.

It is beyond controversy that a summary judgment may not be granted where there is presented a triable issue. Section 437c, Code Civ.Proc.; Taliaferro v. Crola, 152 Cal.App.2d 448, 313 P.2d 136. Section 186 of the Vehicle Code lays down the requisites for transfer of title of a motor vehicle, providing for the endorsement of the certificate of ownership and the surrender to the Motor Vehicle Department with application for transfer, but contains the exception, 'as provided in Section 178' Section 178 provides in substance that the owner of a motor vehicle who has made a bona fide sale thereof and has delivered possession of the vehicle to the purchaser shall not be deemed to be the owner for the purposes of the Vehicle Code so as to be subject to liability for the operation of the vehicle if he has either made proper endorsement and delivery of the certificate of ownership or if he has delivered to the Department of Motor Vehicles or placed in the United States mail addressed to the Department a notice as provided in section 177 of the Vehicle Code. It is provided in section 177 that every dealer shall not later than the end of the next business day give notice of the transfer of the vehicle to the Department upon the appropriate form provided.

Appellant contends that there was not a compliance with the requirements of the Vehicle Code because at the time of the sale to Collins the title had not been placed of record in the defendant Taylor. It is contended therefore that Taylor was not in a position to give the notice to the Vehicle Department as provided in sections 177 and 178. The courts of this state have, however, taken a different view of this section. In Rainey v. Ross, 106 Cal.App.2d 286, 235 P.2d 45, 49, the certificate of ownership was being processed at the time that the sale in question was made. The owner making the sale failed, however, to give any notice of the transfer to the Vehicle Department and contended that because the registration of the vehicle was not complete it was impossible to comply with the statute. The court said:

'Nondelivery of the certificate of registration, from whatsoever cause, operated as a failure to meet the several requirements of the option which respondent chose to exercise. His inability to comply with those requirements did not prevent him from accomplishing the desired objective. He could have given the state the notice prescribed by section 177. Indeed, if he had performed the duty imposed upon him by that section, he would have given...