Rainey v. Ross
| Decision Date | 24 August 1951 |
| Citation | 106 Cal.App.2d 286,235 P.2d 45 |
| Court | California Court of Appeals Court of Appeals |
| Parties | RAINEY v. ROSS et al. Civ. 14667. |
James A. Johnstone, E. J. Rice, Emeryville, for appellant.
Cal.App.rroll, Davis & Freidenrich, J. D. Burdick, San Francisco, for respondent.
Plaintiff Frederick A. Rainey brought this action to recover damages for injuries sustained by him when struck by a motor vehicle driven by defendant Beulah Maxine Hall. He alleged that Hall and defendants Lowell J. Herzog, Allan R. Ross, and Mrs. Allan R. Ross were the owners of the vehicle. Herzog and Mrs. Ross were served but defaulted. Hall was not served. Mr. Ross answered, denying all of the material allegations of the complaint.
The case was tried before the court without a jury. The court found that the accident occurred on June 22, 1945; that Rainey sustained personal injuries proximately caused by Hall in the operation of the vehicle; that as a result of the negligence of Hall Rainey was damaged in the sum of $4,653.34; that at the time of the accident the automobile was owned by Herzog and Mrs. Ross, and operated by Hall with their permission and consent, as their agent and within the scope of the agency; that Mr. Ross was not the owner of the automobile, and that Hall was not his agent, servant, or employee. The court rendered judgment for plaintiff Rainey against Herzog and Mrs. Ross in the sum of $4,653.54 and costs of suit; that defendant Allan R. Ross have judgment against Rainey for his costs of suit. Plaintiff has appealed from that portion of the judgment which is against him and in favor of Ross.
The appeal presents the question whether or not respondent Ross was, at the time of the accident, the owner of the vehicle within the meaning of that term as used in section 402 of the Vehicle Code, which imputes to the owner the negligence of another person who uses or operates the vehicle with the permission, express or implied, of the owner.
Relevant to this inquiry, the court specifically found (upon evidence which supports the findings) that between March 1 and April 13, 1945, respondent sold and delivered possession of the vehicle to Herzog, receiving the consideration therefor; that it was a bona fide sale and transfer; and at the same time he made proper endorsement of the certificate of ownership and delivered the certificate to Herzog; that prior to the sale respondent had been the legal and registered owner of the vehicle; that at the time of the sale the certificate of registration was not in the possession of respondent; that it was then in the possession of the State Department of Motor Vehicles, to which it had been sent by respondent in connection with his application for renewal of registration of the vehicle for the year 1945, and a new certificate of registration had not been returned to him; that respondent received his 1945 certificate of registration from the department several days after the accident, and he then and there mailed it to Herzog at the latter's address; 1 and that respondent did not either deliver or mail to the Department of Motor Vehicles a notice of the sale of the vehicle or the certificates of ownership and registration pursuant to said sale. The records of the State Department of Motor Vehicles, in evidence, indicate that neither the certificate of ownership nor the 1945 certificate of registration was delivered or mailed to the department until a considerable length of time after the accident. According to those records, Mr. Ross was the legal and registered owner of the vehicle at the time of the accident.
Appellant contends that at the time of the accident, June 22, 1945, respondent was still the 'owner' of the vehicle within the meaning of that term as used in section 402 of the Vehicle Code. He predicates this contention upon the fact that respondent chose one of several methods which the law accorded him, when selling a vehicle, to terminate his imputed liability for subsequent negligent operation, and, assertedly, ineffectually complied with that method because he did not, prior to the accident, deliver to the buyer the certificate of registration in addition to the vehicle and the endorsed certificate of ownership, despite the impossibility of delivering the certificate of registration, which was then in the possession of the Department of Motor Vehicles. In this connection, appellant directs attention to the fact that the law did not impose an impossibility in this regard, for it accorded respondent an alternative method of terminating liability under section 402, that of delivering the vehicle to the buyer and delivering or mailing to the department a notice of the sale, giving the date of the sale, the names and addresses of the owner and the transferee, and a description of the vehicle.
Appellant is correct in his contention. The statutes applicable in 1945 were sections 186, 178, and 177 of the Vehicle Code. The pertinent provisions of section 186 read as follows: '(a) No transfer of the title or any interest in or to a vehicle registered hereunder shall pass and any attempted transfer shall not be effective unless and until the parties thereto have fulfilled either of the following requirements:
'(1) The transfer shall have made prior endorsement and delivery of the certificate of ownership and delivery of the registration card to the transferee as provided in this code and the transferee has delivered to the department or has placed in the United States mail, addressed to the department, such certificate and card when and as required under this code with the proper transfer fee and thereby makes application for a transfer of registration except as otherwise provided in Section 180, or
'(2) The transferor shall have delivered to the department or shall have placed in the United States mail addressed to the department the appropriate documents for the registration or transfer of registration of such vehicle pursuant to such sale or transfer except as provided in Section 178.' Stats. 1943, ch. 1129, p. 3072.
It is apparent that if the seller relies upon the method of transfer prescribed by subdivision (1) of section 186 he depends upon the buyer to complete the transaction. In the instant case the buyer did not complete the transaction prior to the accident. He neither delivered nor mailed any of the documents to the department prior to the accident. If in this case the seller had sought to avail himself of the provisions of subdivision (2) of section 186 by delivering or mailing the 'appropriate documents' directly to the department, he might be in a position to invoke his prior delivery of the certificate of registration to the department as delivery of one of the appropriate documents, a question not involved upon this appeal because the seller did not deliver or mail any document to the department pursuant to this sale.
The concluding clause of subdivision (2) of section 186 expressly recognized the several methods accorded by section 178 to a seller for terminating the further application to him of the provisions of section 402 in respect to imputed liability for negligent operation of the vehicle by any other person thereafter. Section 178 read as follows: '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 the 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.' Stats. 1941, ch. 1053, p. 2719, at p. 2720. In respect to the notice (recognized as an alternative method by section 178), the pertinent provisions of section 177 prescribed that 'Whenever the owner of a vehicle registered hereunder sells or transfers his title or interest in, and delivers the possession of, said vehicle to another, said owner shall immediately notify the department of such sale or transfer giving the date thereof, the name and address of such owner and of the transferee and such description of the vehicle as may be required in the appropriate form provided for such purpose by the department.' Stats. 1935, ch. 27, p. 93, at p. 115.
By the provisions of sections 178 and 177 the law accorded a bona fide seller, who delivered the vehicle to the buyer, three optional methods of terminating potential future liability under section 402. Two of them (delivery or mailing to the department, by the seller, of the notice or the appropriate documents) would give the state adequate information concerning the transfer that was in process, information which would be available to all who might have occasion to inquire. Respondent chose neither of these methods. The third optional method (delivery of both certificates, one of them endorsed, by the buyer to the seller) was the option which respondent chose to exercise. But he did not comply with the requirements under that option. He merely endorsed and delivered the certificate of ownership, did not deliver the certificate of registration. The impossibility of then delivering the certificate of registration to the buyer, because it was in the possession of the state pursuant to renewal of registration requirements, is of no significance. For the policy of the law in according a seller this method of avoiding future liability under section 402 was that of clothing the buyer with...
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