Heves v. Kershaw

• Decision Date: 21 December 1961
• Parties: Kathe HEVES, Plaintiff and Respondent, v. Robert KERSHAW, Individually and doing business as Village Auto Body, et al., Defendants. Robert Kershaw, individually and doing business as Village Auto Body, Appellant. Civ. 25432.
• Court: California Court of Appeals Court of Appeals

Page 837

17 Cal.Rptr. 837

198 Cal.App.2d 340

Kathe HEVES, Plaintiff and Respondent, v. Robert KERSHAW, Individually and doing business as Village Auto Body, et al., Defendants Robert Kershaw, individually and doing business as Village Auto Body, Appellant.

Civ. 25432.

District Court of Appeal, Second District, Division 4, California.

Dec. 21, 1961.

Hearing Denied Feb. 14, 1962.

Early, Maslach, Foran & Williams, by Harry Boyd, Los Angeles, for appellant.

Hecker, Dunford & Kenealy, by James N. Kenealy, Jr., Los Angeles, for respondent.

BALTHIS, Justice.

Defendant Kershaw appeals from an order denying his motion for satisfaction of a judgment against him.

On July 15, 1958, defendant Benardo, while driving an automobile owned by defendant Kershaw, was involved in an accident with the pedestrian plaintiff. Benardo was a minor and his driver's license application had been signed and verified by his mother, defendant Esther Halfon. Plaintiff sued the minor operator, the owner and the parent-signer and recovered judgment for $19,000.00. Pursuant to stipulation the judgment against the owner, defendant Kershaw, was limited to $5,000.00, and the judgment against the parentsigner, defendant Halfon, was limited to $5,000.00. The judgment reads in part: 'It is ordered, adjudged, and decreed that said plaintiff, Kathe Heves, have and recover from said defendants Edward Benardo, a minor, * * * and Robert Kershaw, * * * jointly and severally, the sum of $5,000,00; from said defendants Edward Benardo, a minor, * * * and Esther Halfon, jointly and severally, the additional sum of $5,000.00; and from said defendant Edward Benardo, a minor, * * * the additional sum of $9,000.00.'

On August 26, 1960, the sum of $10,000.00 was paid to plaintiff and she acknowledged satisfaction of the judgment against defendant Halfon in the amount of $5,000.00 and acknowledged a partial satisfaction against defendant Benardo in the sum of $10,000.00. The partial satisfaction reads: 'Plaintiff hereby acknowledges full satisfaction as against the defendant Esther Halfon against whom the judgment was in the sum of $5,000.00, and acknowledges a partial satisfaction against the defendant Edward Benardo in the sum of $10,000.00 plus costs in the sum of $159.70. The sum of $9,000.00 on the judgment of $19,159.70 remains outstanding and unsatisfied, $5,000.00 of which is against defendant Robert Kershaw.'

While the record does not show who made the payment of $10,000.00, it is conceded that this payment was not made by defendant Kershaw.

Defendant Kershaw contends that payment by one tortfeasor on a judgment against several tortfeasors should be a credit as to each tortfeasor in the total amount of the payment. On the other hand, plaintiff contends that the liability of the owner to the injured party is direct and primary, and no payment having been made by the owner, no satisfaction of judgment should be ordered.

The question presented in whether after the application of the first $5,000.00 to satisfy the joint liability of the parent-signer and operator ($5,000.00), the remaining $5,000.00 should be applied to satisfy the joint liability of owner and operator ($5,000.00) or should be applied on account of the separate additional liability ($9,000.00) of operator alone.

In our opinion the joint liability created by the judgment against the owner and operator must be satisfied before any payment is used to satisfy the additional individual or several liability portion of the judgment against the operator.

We do not think the case of Sawyer v. Zacavich, 178 Cal.App.2d 65, 3 Cal.Rptr. 6, cited by plaintiff, is in any way opposed to the conclusion above mentioned. In the Sawyer case, the action was brought against the operator (a minor), the stepfather who had signed and verified the minor's application for a driver's license, and the owner of the automobile operated by the minor. In a jury trial, the verdict was in favor of plaintiff and against defendants for $15,000.00. Judgment was against the defendants (minor, parent and owner) jointly, for $5,000.00; and against the minor 'for the further sum of $10,000.' The judgment further provided that the payment of $5,000.00 'shall constitute full satisfaction of this judgment as to the defendants Edward Zacavich [parent] and Elsa Pearl Strother [owner], and satisfaction to said extent as to defendant Marshal Zacavich [minor].' On appeal from that portion of the judgment providing that a payment of $5,000.00 would satisfy the judgment against the owner and parent the court held that the liabilities were separate and cumulative, saying, 'It cannot properly be said that the legislative intent was that there should be only one liability or recovery under said sections where the owner and the signer are different persons. The liabilities of the owner and the signer under said sections 402 and 352 of the Vehicle Code, where the owner and the signer are different persons, are separate and cumulative liabilities. The judgment should be modified so that it will provide that plaintiff is entitled to recover $5,000 from the owner and $5,000 from the signer of the minor's application.' (p. 613, 3 Cal.Rptr. p. 11.)

We agree with the Sawyer case and if only a $5,000.00 payment had been made here (presumably by the parent) it would have satisfied only the joint liability of the parent and operator (as to $5,000.00) and left the liability of the owner outstanding because that liability, as held in Sawyer, is separate and cumulative.

In the instant case, the sum of $10,000.00 was paid and this is sufficient to pay both the joint liability of parent-signer and operator ($5,000.00) and the joint liability of owner and operator ($5,000.00). These two joint liabilities must be satisfied before there is any application of the payment to the individual liability of the operator.

The code sections dealing with the statutory liability of the owner (based upon imputed negligence) indicate the legislative intent to satisfy the joint liability of owner and operator before satisfaction of the individual and separate liability of the operator. At the time of the accident involved here, July 15, 1958, section 402(a) (now section 17150) of the Vehicle Code provided for the statutory liability of the owner based upon imputed negligence. Section 402(b) (now section 17151) limited the owner's liability to $5,000.00. Section 402 (c) (now section 17152) provided that in any action against operator and owner, 'Upon recovery of judgment, recourse shall first be had against the property of said operator * * *.' Section 402(d) (now section 17153) provided that the owner is subrogated to all rights of the injured party and may recover from the operator the total amount of any judgment recovered against the owner.

The intent of these sections is to make it clear that as between operator and owner, the primary liability is that of the operator and the liability of the owner is secondary. The owner's liability is like that of a guarantor as to the $5,000.00 joint liability of owner and operator. Hence, any payment made by the operator (the minor driver in this case) must be applied first to satisfy the liability of the guarantor. This is in no way prejudicial to the rights of the injured party as far as the collection of this joint liability of owner and operator is concerned. Such joint liability must be satisfied before application of any payments to the separate and additional liability of the operator beyond the amount of the owner's liability.

It should be emphasized that there is no conflict here as to priority of satisfaction of judgment as between the parent-signer and the owner. That part of the judgment dealing with the liability of the parent-signer having been satisfied, and there being no question on this appeal as to the propriety of the satisfaction against the parentsigner, we are only concerned with the priority of satisfaction as between owner and operator.

While the liability imposed by section 17150 of the Vehicle Code upon the owner is a primary and direct liability insofar as the...