Larson v. Barnett

• Decision Date: 20 December 1950
• Citation: 101 Cal.App.2d 282,225 P.2d 297
• Court: California Court of Appeals Court of Appeals
• Parties: LARSON et al. v. BARNETT et al. Civ. 7807.

Page 297

225 P.2d 297

101 Cal.App.2d 282

LARSON et al. v. BARNETT et al.

Civ. 7807.

District Court of Appeal, Third District, California.

Dec. 20, 1950.

Stephen P. Galvin and Stephen P. Galvin, Jr., Merced, for appellant.

C. Ray Robinson, Willard B. Treadwell and Margaret A. Flynn, all of Merced, for respondent.

VAN DYKE, Justice.

Respondent June Patricia Larson brought this action against appellant, Earl Barnett, Jr., and a named corporation defendant, George Johnson, a named defendant, and three fictitiously named defendants. The corporation and George Johnson were dismissed from the action. The complaint alleged that respondent had been injured through the negligent operation of an automobile by Earl Barnett, Jr. Respondent Dean Larson, husband of June, in a second cause of action sought recovery upon the same grounds for the reasonable cost of repairing the automobile in which she was riding, which vehicle belonged to him. Appellant Earl Barnett, Jr. answered for himself alone, admitting that he was driving the other car involved in the accident, denying the allegations of negligence and affirmatively alleging that he was the sole owner of that car. Service of process was made on the corporation defendant by serving Earl Barnett, Sr., father of Earl Barnett, Jr., as vice president of the corporation. The deposition of Barnett, Sr. was taken and thereupon the action was dismissed as to the corporation and as to the named defendant George Johnson. The relief against both had been demanded pursuant to appropriate allegations that they, with the fictitiously named defendants, owned the car Barnett, Jr., was driving and that he was driving it with the owner's permission. The deposition had developed to the satisfaction of respondents that the corporation and George Johnson had no interest in the Barnett car. Trial was begun before the court and after several witnesses had been called and examined respondents asked that the trial be continued until process could be served on Barnett, Sr. This request was granted and such service was made, the return thereof reciting that service was made upon him as Doe One, a fictitiously named defendant. When the cause again came on for trial counsel for Barnett, Sr. moved to quash service of summons and to dismiss the action as to him on the ground that he was not a party to the action. It was contended that he could not be considered as having been sued as a fictitiously named defendant because his true name had been at all times known to respondents and that the attempt to serve him as a fictitiously named defendant was sham and subterfuge. The motion was denied and the cause proceeded to trial upon the answers of Barnett, Jr. and Barnett, Sr., the answer of the latter denying ownership in him of any interest in the car Barnett, Jr. had been driving and denying the allegations of negligence and damage for want of information and belief. He also pleaded the statute of limitations since more than a year had elapsed between the filing of the complaint and the service of process upon him as Doe One. After the close of the evidence the court made findings of fact. It found to be true the allegations of the complaint that Barnett, Sr. was sued as Doe One, his true name and capacity being unknown to plaintiff at the filing of the complaint; that at all pertinent times he was the owner of the car that Barnett, Jr. was driving; that Barnett, Jr. was driving it with permission of Barnett, Sr.; that Barnett, Jr. drove the car negligently and that as a proximate result thereof respondents suffered damage; that respondent June Patricia Larson suffered general damages in the sum of $5,000 and special damages in the sum of $4,335; that the automobile of respondent Dean Larson was damaged in the sum of $470; that Dean Larson was not guilty of contributory negligence in the operation of his car. The court further found that respondents at the time of filing the complaint knew the true name of Earl Barnett, Sr., but did not know that be was the owner of the car Barnett, Jr. was driving. The court concluded that judgment should be rendered in favor of June Patricia Larson in the sum of $9,335 against Barnett, Jr., in the sum of $5,000 against Barnett, Sr., and that Dean Larson was entitled to judgment against both in the sum of $470. Both Earl Barnett, Jr. and Earl Barnett, Sr. have appealed.

In support of their appeal they contend that the evidence does not support the finding and decision that Barnett, Sr. was the owner of the car Barnett, Jr. was driving; that the court had no jurisdiction of the person of Barnett, Sr. and that the judgment against him is erroneous and the motion to dismiss should have been garnted; that the decision and conclusions of law are erroneous and prejudicial as to the damages assessed against the appellant Barnett, Jr.

We shall discuss first the contention that the evidence does not support the findings and the judgment based thereon that Barnett, Sr. was the owner of the car. The pertinent facts may be stated as follows: The car driven by Barnett, Jr. was a Chrysler. Barnett, Sr. and Barnett, Jr. between them testified as follows: Just prior to the accident the Chrysler had been owned by a Mrs. Parlavechio and she traded it to Barnett, Sr. for a pick-up car owned by him. On the day of the accident Barnett, Sr. and Mrs. Parlavechio met at the bank which held a lien upon the Chrysler car and there both she and the bank, as legal owner and registered owner, endorsed the pink slip and turned it over to Barnett, Sr. He turned the pick-up over to Mrs. Parlavechio and she drove it away. Barnett, Sr. took possession of the Chrysler and placed it in a car lot. Barnett, Jr. came to the lot and took possession of the Chrysler, pursuant to previous agreement with his father that Barnett, Sr. would sell the car to him. The pink slip was turned over to Barnett, Jr. Later that evening when Barnett, Jr. was driving the car on his way home from the car lot the collision with the Larson car occurred. Although Barnett, Sr. turned the pink slip over to Barnett, Jr., he did not endorse it or sign his name thereon in any capacity. But he did receive part payment for the car from his son. Sometime after the accident Barnett, Jr. endorsed the pink slip and sent it in to the Motor Vehicle Department, which in time issued an ownership certificate to him, showing him to be the owner of the Chrysler. Appellants contend that by virtue of the transactions related, Barnett, Sr. effectively transferred the Chrysler car to his son so that he was not at the time of the accident the owner thereof. On the contrary, respondents contend that under the provisions of the Vehicle Code the transactions recited did not, as against respondents, divest him of ownership so as to free him from owner's liability. The pertinent provisions of the Vehicle Code are the following: Section 186 provides that no transfer of the title or any interest in or to a vehicle registered thereunder shall pass and any attempted transfer shall be ineffective unless and until the parties to the transfer shall have fulfilled either of the following requirements: 1. The transferor shall have made proper endorsement and delivery of the certificate of ownership and delivery of the registration card to the transferee and the transferee has delivered to the department or placed in the mail addressed to the department such certificate and card with the proper transfer fee and application for a transfer of registration; 2. The transferor shall have delivered to the department or shall have placed in the mail addressed to it the appropriate documents for registration or transfer of registration of the vehicle pursuant to such sale or transfer. It is provided that the section is subject to the provisions of Section 178. Section 178 provides that:

'An owner who has made a bona fide sale or transfer of a vehicle and has delivered possession thereof to a purchaser shall not by reason of any of the provisions of this code be deemed the owner of such vehicle so as to be subject to civil liability for the operation of such vehicle thereafter by another when such owner in addition to the foregoing has fulfilled either of the following requirements:

'(1) When such owner has made proper indorsement and delivery of the certificate of ownership and delivered the certificate of registration as provided in this code.

'(2) When such owner has delivered to the department or has placed in the United States mail, addressed to the department, either a notice as provided in Section 177 or appropriate documents for registration of such vehicle pursuant to such sale or transfer.'

Appellants contend that the requirements of Section 178 were met in this, that there was a bona fide sale and transfer, that the purchaser, Barnett, Jr. had received the car from Barnett, Sr. and that Barnett, Sr. had made proper endorsement and delivery of the certificates of ownership and of registration. On the other hand, respondents contend that these requirements had not been met in that Barnett, Sr. had not in any manner endorsed the certificate of ownership before its delivery to his son. We think this contention of respondents must be sustained.

It was held by the Supreme Court in Henry v. General Forming, Ltd., 33 Cal.2d 223, 227, 200 P.2d 785, that the requirements for registration of title and ownership as indicated by the code provisions were enacted in the interest of public welfare, to protect innocent purchasers, and to afford identification of vehicles and persons responsible in cases of accident and injury. And in the earlier case of Bunch v. Kin, 2 Cal.App.2d 81, 84 37 P.2d 744, it was held that there registration provisions derived their importance from the nature of motor vehicle traffic which requires that there be readily ascertained indicia of ownership for the protection of the general public in case of accident or violation of the...