Peterson v. Grieger, Inc.

• Decision Date: 30 November 1961
• Citation: 57 Cal.2d 43,17 Cal.Rptr. 828,367 P.2d 420
• Parties: , 367 P.2d 420 Robert Edward PETERSON, a Minor, etc., Plaintiff and Respondent, v. GRIEGER, INC., Defendant and Appellant. * L. A. 26431
• Court: California Supreme Court

Page 828

17 Cal.Rptr. 828

57 Cal.2d 43, 367 P.2d 420

Robert Edward PETERSON, a Minor, etc., Plaintiff and Respondent, v. GRIEGER, INC., Defendant and Appellant. ^*

L. A. 26431.

Supreme Court of California

Nov. 30, 1961.

Rehearing Denied Jan. 9, 1962.

Jarrett & Morgan, Morgan, Holzhauer & Wenzel and Lee B. Wenzel, Los Angeles, for defendant and appellant.

John P. Brown, Pasadena, and Roger A. Saevig, Rialto, for plaintiff and respondent.

WHITE, Justice.

This is an appeal by defendant Grieger, Inc. from a judgment for plaintiff Robert Edward Peterson, a minor, herein represented by his guardian ad litem, Russell H. Peterson, in an action for damages for personal injuries sustained when plaintiff was struck while riding his bicycle by an automobile owned by defendant Grieger, Inc., but which was then being operated by an alleged permittee of the defendant Audley L. Cole, an operator of a parking lot. Judgment in the amount of $2,700 was entered upon a jury verdict for plaintiff against both defendants. The liability of defendant owner Grieger, Inc. was predicated exclusively upon the provisions of former section 402, subdivision (a) (now section 17150), of the Vehicle Code. The principal question presented is whether the vehicle was being operated with implied permission of defendant owner when the accident occurred.

On the evening of January 25, 1958, 17 year-old Michael Leovich stopped by a parking lot operated to accommodate vehicles belonging to patrons of a Los Angeles restaurant. He often stopped by to visit with two of his teen-age friends who parked cars as regular employees of Audley L. Cole. Cole directed or allowed Leovich to park cars for him even though Leovich did not have an operator's license. The restaurant parking facility was operated by Cole as a part-time job for the privilege of keeping the parking tips.

William J. Grieger drove up to the restaurant at approximately 6:45 that evening in an automobile owned by Grieger, Inc., but used as Grieger's personal car. ¹ It was a Saturday night, the restaurant parking lot was crowded, and Grieger had to park the vehicle over the sidewalk for a few minutes before driving into the main parking lot, which approximately surrounds the restaurant. Cole gave Grieger a parking ticket, and Grieger then went into the restaurant leaving the motor of the automobile running. Cole then directed or allowed Leovich to get into the car to park it. The parking facilities utilized by the restaurant included: (1) a relatively large main area immediately adjoining the restaurant, (2) one side of a short alley leading to a nearby intersection, (3) the curb area near that intersection, and (4) another parking lot on the other side of the intersection. Since the area near the restaurant, the alley, and the intersection area were full, Leovich drove the Grieger automobile across the main lot, and into and through the alley toward the overflow parking lot. After stopping at the end of the alley, Leovich drove into the intersection wherein he collided with plaintiff's bicycle, which plaintiff was riding along the thoroughfare.

Grieger testified that he had dined at the restaurant on four or five previous occasions, and that he had recognized Cole as the operator of the parking facility that Saturday evening. He testified that there was no conversation with Cole concerning parking the automobile. Grieger testified as follows on direct examination: 'Q. Were you paying a heck of a lot of attention as to what happened to the car after you ran into the restaurant there? A. No, I did not, because I left it in charge of the caretaker.' When Grieger was asked, 'You just tell us what you meant * * * about leaving it in charge of the caretaker with respect to where that car would be parked,' he answered, 'Well, my thought would be that they had that one parking lot; that was my knowledge, that one lot and that one lot only.' He was then asked, 'All the (implied) permission that you had given them was to park in that space around there (the restaurant)?' Grieger responded, 'I would say yes.' But on cross-examination he testified: 'Q. Mr. Grieger, is it a fair statement of fact to say that you did leave it in charge of Mr. Cole to be parked? A. Yes. Q. Isn't it also a fair statement of fact to say, Mr. Grieger, that it didn't enter your mind at the time you left that car in charge of the caretaker as to where it was going to be parked? Did it, now, really, in all honesty? A. I had no idea.' (Emphasis added.)

Leovich testified that he had been going to the parking lot four or five times per week for approximately two months prior to the accident, and that a week or two after he first went there Cole asked him to park some cars during especially busy evenings. He also testified that Cole was fully aware that he had no operator's license. Leovich appeared to be quite familiar with the procedure and the numbering system in the lot, although he testified that he had received no wages from Cole. He also testified that he had driven vehicles down to the overflow lot on 15 or 20 previous occasions upon Cole's request, and that he had never driven a vehicle to that lot except upon Cole's express instruction. According to Leovich, after Grieger drove up and Cole gave Grieger the parking ticket, Cole said to Leovich: 'Take the car and drop it to the lower lot.' Leovich also testified that approximately 45 minutes after the accident Cole told him that: '* * * if they asked me if I parked cars before, just say 'Yes, three to four times."

Cole admitted that Leovich frequented the parking lot, but at the trial denied ever having expressly asked him to park a vehicle. However, Cole's testimony indicated that he at least made no objection to the boy's parking the Grieger automobile. Also, shortly after the accident Cole admitted to an investigating officer that when Leovich had asked concerning the automobile '(S)hould he pull it down,' Cole had responded, 'Yes, just pull it down.'

During the trial defendant Grieger, Inc. moved for a non-suit on the ground of lack of evidence of permission for Leovich to operate the automobile within the meaning of Vehicle Code, section 402. In denying the motion, the court stated that there was no question but that there was sufficient evidence to support plaintiff's case against the owner of the vehicle. The court further remarked: 'The man drives into a parking lot and leaves the car with a caretaker, and the caretaker is entitled to park it in that lot or any one in the immediate vicinity, if that lot if full. I don't think there is express permission required there at all.'

It was dark and raining very hard at the time of the collision. Leovich testified that after stopping at the end of the alley, he 'proceeded on across the street.' He was asked, 'Approximately how much distance separated the car which you were driving and the bicycle when you first observed it?' Leovich answered, 'It couldn't have been more than a foot or two at the very, very most because when I observed him, he was almost at the front fender then, and the line of vision from the (automobile) light hasn't a chance to go out that far.' He continued: 'I put my foot on the brake pedal and my foot was all wet from being out in the rain, and it slipped off the corner of the pedal and onto the gas * * * (and) I ran the boy down.' Plaintiff, who was 16 years old at the time of the accident, testified: 'I saw he was coming and I turned down the street to try to get out of the way.' He also testified that his bicycle light was then functioning, and could be seen from a considerable distance. The jury was instructed concerning contributory negligence.

Plaintiff was thrown to the street by the impact, injuring his ankles, knees, legs, and hands. He was treated by a doctor for approximately a month, but he was walking with a limp and his knees, left leg, and left ankle continued to give him pain. He was unable to continue with his employment as a delivery boy for approximately six weeks. He testified that several months after the accident: 'If I bumped my knees or my leg, it would pain. My knees would feel like they were cut open and gushing out blood.' His knees were visibly scarred at the time of trial (October 1959), and he then stated that: '(I)f I hit my leg where the bruises are at, it will make me limp for a couple of days and hurt for a week or so, and my knees still feel like they are broke open.' There was testimony by a physician that plaintiff's left ankle may require future surgery as a result of the accident. Also, a radiologist testified, on the basis of x-rays, to the presence of a bone spur in the left ankle area which may require surgical treatment.

Defendant contends that the evidence was insufficient to sustain a finding that Leovich was driving with permission of the owner within the meaning of Vehicle Code, section 402, when the accident occurred. Section 402, shbdivision (a) provided: 'Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle * * * by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.' (Emphasis added.) Initially then, it is clear that defendant is liable under former section 402 if Leovich was operating the Grieger automobile with implied permission of the owner.

In urging that Leovich was not operating the automobile with implied permission when the accident occurred, defendant contends that the judgment decreeing the owner's liability herein should be reviewed in light of a principle of narrow statutory construction, since former section 402 enlarged a vehicle owner's common law liability. (See Burgess v. Cahill, 26 Cal.2d 320, 323, 158 P.2d 393, 159 A.L.R. 1304.) But the latter...