Johnson v. Casetta

• Decision Date: 24 November 1961
• Citation: 197 Cal.App.2d 272,17 Cal.Rptr. 81
• Parties: Leo L. JOHNSON and Olga R. Johnson, etc., et al., Plaintiffs and Appellants, v. Ernest CASETTA and Melvin Gage, Defendants and Respondents. Civ. 19298.
• Court: California Court of Appeals Court of Appeals

Page 81

17 Cal.Rptr. 81

197 Cal.App.2d 272

Leo L. JOHNSON and Olga R. Johnson, etc., et al., Plaintiffs and Appellants, v. Ernest CASETTA and Melvin Gage, Defendants and Respondents.

Civ. 19298.

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

Nov. 24, 1961.

Howe, Finch & Glass, Palo Alto, Ogden & Ogden, Seattle, Wash., for appellants.

Ropers, Majeski & Kane, Redwood City, for respondents.

AGEE, Justice.

Plaintiffs appeal from an order granting a nonsuit to defendants Casetta and Gage on plaintiffs' opening statement. On this appeal we assume that plaintiffs could prove everything stated therein plus certain additions agreed to by stipulation.

The action is for damages for personal injuries to plaintiffs, who are husband and wife, and for damages for the wrongful death of their minor son. These damages resulted when a 1948 Chevrolet automobile driven by Medina swerved across the double center line of a four lane highway and collided head-on with plaintiffs' automobile which was coming from the opposite direction. The collision occurred near Sunnyvale. Medina was driving at an unreasonable speed and gave no signal of any intention to cross over the center line.

Medina had obtained the Cheverolet from Casetta and Gage. Casetta owned a used car lot in San Jose and Gage was a salesman employed by him. Medina was about 25 years of age, a native of Mexico, and could not speak English. He and a friend, who acted as interpreter, went to the lot and talked to Casetta. They asked him if he had a 1948 Chevrolet. Casetta told them that one had come in that morning and that Gage had taken it to his home to test it. They went there, saw the car, and Medina made a $10 down payment. The next day Medina and his friend went back to the lot, Medina paid an additional $60, and the balance of the purchase price $125, was financed through a finance company. Casetta and Gage delivered the car to Medina on July 1, 1956. Some two weeks before the accident title was registered in Medina's name.

We come now to the crux of this appeal. Plaintiffs stated that they would prove the following facts: that Medina did not have, nor had he ever had, a license to operate a motor vehicle; that he was incompetent to operate a motor vehicle and had virtually no driving experience; that Casetta and Gage, when they supplied the automobile to Medina, knew or by the exercise of reasonable care should have known that Medina was an inexperienced and incompetent driver; that they should have known that Medina was not licensed to drive and that to furnish him an automobile under these circumstances created an unreasonable risk that his operation of the car would endanger persons using the public streets and highways of California; that this precise risk materialized on August 9, 1956, when Medina, operating the Cheverolet in an incompetent and negligent manner, collided with plaintiffs' automobile.

Plaintiffs rely upon the principle set forth in section 390 of the American Law Institute's Restatement of Torts, which provides: ' § 390. Chattel for Use by a Person Known to be Incompetent.

'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.'

Paraphrasing this statement to make it more applicable to the facts of this case, the section would read: 'One who supplies an automobile for the use of another whom the supplier (1) knows, or (2) from facts known to him should know, to be likely, because of his inexperience (or incompetency), to use it in a manner involving unreasonable risk of bodily harm to others whom the supplier should expect to be in the vicinity of its use is subject to liability for bodily harm caused thereby to them.'

There if nothing in plaintiffs' offer of proof which would tend to prove that either Casetta or Gage knew of any facts from which they should have known of Medina's inexperience or incompetency as a driver or from which they should have been put upon inquiry as to his competency. We realize, of course, that on this appeal we must assume that plaintiffs could prove that Medina was in fact an inexperienced, incompetent and unlicensed driver. But this does not establish that either Casetta or Gage knew of any facts from which they should have known this. And in the absence of any such knowledge, they had no legal duty or obligation to inquire.

They knew that Medina appeared to be about 25 years of age, could not speak English, and wanted to buy a 1948 Cheverolet. They sold him one for $195. But there was nothing about these facts which disclosed to them, or put them upon inquiry as to, the incompetency of Medina as a driver.

The cases cited by plaintiffs themselves illustrate this point. In Owens v. Carmichael's U-Drive Autos, Inc., 116 Cal.App. 348, 352, 2 P.2d 580, a directed verdict for defendant was held to be error because...