Roberts v. Craig

• Citation: 124 Cal.App.2d 202,43 A.L.R.2d 1146,268 P.2d 500
• Parties: , 43 A.L.R.2d 1146 ROBERTS et al. v. CRAIG et al. Civ. 15737.
• Decision Date: 29 March 1954
• Court: California Court of Appeals

Page 500

268 P.2d 500

124 Cal.App.2d 202, 43 A.L.R.2d 1146

ROBERTS et al. v. CRAIG et al.

Civ. 15737.

District Court of Appeal, First District, Division 1, California.

March 29, 1954.

Tinning & DeLap, J. Vance Porlier, Richmond, for appellants.

Louis J. McKannay, Concord, Carlson, Collins, Gordon & Bold, Richmond, George R. Gordon, Martinez, for respondents.

PETERS, Presiding Justice.

Plaintiff, Mrs. Roberts, was a licensed automobile driver. Defendant, Mrs. Craig, possessed a limited instruction permit under section 253 of the Vehicle Code which entitled her to drive only when accompanied by and under the supervision of a licensed driver. Mrs. Roberts accompanied Mrs. Craig on a trip. Mrs. Craig drove the automobile. She so negligently operated the car that an accident resulted and Mrs. Roberts was injured. In this action by Mrs. Roberts and her husband against Mrs. Craig and her husband the jury brought in a verdict in favor of the plaintiffs. Defendants appeal from the judgment entered on the verdict, their main contention being that Mrs. Roberts was guilty of contributory negligence because the negligence of Mrs. Craig, as a matter of law, was imputable to Mrs. Roberts.

The facts are not substantially in dispute. Both parties live near Concord, in Contra Costa County. They were on their way to Martinez when the accident happened. They had been friends for several years. Although there is some conflict in the testimony as to why they were going to Martinez, the evidence most favorable to respondents, which we must accept on this appeal, is to the effect that during a visit of respondent at the home of appellant on May 3, 1951, appellant stated that she wanted to make the trip to try and collect some salary checks of her sailor husband, and, because she had only a limited instruction permit, she did not want to go alone, but wanted a licensed operator to accompany her. She asked respondent if she would do so. Respondent had no personal reason to go to Martinez, but agreed to accompany appellant as an accommodation to her friend. Appellant admitted that before asking respondent she had asked two other friends to accompany her, but they had been unable to make the trip.

It was agreed that appellant would call for respondent the next morning. On the morning of May 4, 1951, respondent discovered, rather unexpectedly, that she could have the use of her own car that day because her husband did not need it. She decided to drive over to appellant's home and offer to take her to Martinez in respondent's car. On the way she met appellant who was driving over to pick up respondent pursuant to their prior agreement. Respondent offered the use of her car, but appellant stated that she felt fine, was not nervous, and wanted to drive her own car. Respondent's car was returned to its garage, and the two friends, in appellant's car and with appellant driving, proceeded on their trip.

The accident occurred at the intersection of Willow Pass Road, on which appellant and respondent were traveling, and the Arnold Industrial Highway. About three-quarters of a mile before reaching this intersection appellant said something about the car not acting right, and asked respondent if she noticed anything 'funny' about its performance. Respondent replied that she was not familiar with that car's operation, but that she did not notice anything wrong with its performance.

After this conversation, the two friends proceeded without incident to the intersection. Here appellant stopped for a stop sign. Appellant and respondent looked for approaching traffic in both directions on the Arnold Industrial Highway. Respondent told appellant, which was the fact, that the traffic was clear, and appellant started into the intersection. The car started jerking, whereupon appellant fed it more gas, and the car jerked forward. Thereupon, appellant apparently froze at the wheel and completely lost control of the car. Three times respondent told her to apply her brakes, but appellant failed to do so. The car turned sharply, jumped over two six-to-eight-inch curbs located along the edges of the dividing strip of the highway, traversed the other side of the highway, and went over an embankment and down a deep gully bordering the highway. Respondent received serious injuries, forming the basis of this action.

It is conceded that the evidence supports the finding that appellant was guilty of ordinary negligence proximately causing the accident. But, says appellant, under the provisions of section 253 of the Vehicle Code requiring a permittee to whom an instruction permit has been issued to be accompanied by and under the supervision of a licensed operator, all acts of negligence of the permittee in driving the car are imputable, as a matter of law, to the licensed driver riding with the permittee. If this were the proper interpretation of the section it would prevent recovery in the present action.

The section reads as follows: 'Any person over the age of fourteen years may apply to the department for an instruction permit. The department for good cause may issue to the applicant an instruction permit which shall entitle the applicant while having such permit in his immediate possession to drive a motor vehicle upon the highways for a period not exceeding six months when accompanied by, and under the immediate supervision of, a licensed operator or chauffeur, * * *.' (Italics added.)

But little aid as to the meaning of the section is to be found in its legislative history. The original section relating to permits was section 59 of the California Vehicle Act. Stats. of 1923, Chap. 266, at p. 531. A temporary permit of the general type of an instruction permit was first mentioned in the section as a result of a 1925 amendment to section 59. Stats. of 1925, Chapter 239, at p. 394. As then amended the section provided for the issuance of a temporary permit allowing the holder to drive a motor vehicle for a limited period 'when accompanied by a licensed operator'. In 1935 this section became codified as section 253 of the Vehicle Code, Stats. of 1935, Chapter 27, at p. 129, and, as first adopted in that year, contained the language last quoted. But later in the 1935 session, Stats. of 1935, Chapter 570, at p. 1665, the section was amended by changing the phrase 'when accompanied by a licensed operator' to 'when accompanied by, and under the immediate supervision of, a licensed operator'. Although the section has been amended several times since 1935, the language here involved was not changed and appears in the section as presently effective.

No California cases have been found interpreting the portion of the section here involved. Appellant urges that since the 'supervision' of the permittee has been placed in the licensee, each act of the permittee necessarily becomes the act of the licensee. Such interpretation would mean that the licensee is not only barred from any action against the permittee growing out of the operation of the car, including an action based on the willful misconduct of the permittee, but also that the licensee would become liable to third persons injured as a result of the negligence of the permittee, and perhaps would become criminally liable for penal violations of the permittee. The language used does not permit such an interpretation. It is worthy of note that when the Legislature intended to make a person jointly liable with the driver of a vehicle to third persons it had no difficulty in finding language to express that intent. Thus, section 402 of the Vehicle Code expressly makes the owner liable for the negligence of a person operating the car with his consent. Section 352 makes an adult signing a minor's application similarly liable. No such provisions are found in section 253. The significance of the absence of such language was commented on by the New York court in interpreting a similar statute in Sardo v. Herlihy, 143 Misc. 397, 256 N.Y.S. 690, 691. In that case, as in the instant one, the plaintiff was a licensed driver riding with an operator who had what, under New York law, was called a 'learner's' permit. The car in which plaintiff was riding collided with that of defendant under circumstances where the jury found that the holder of the learner's permit and the defendant were both guilty of negligence. It was urged, as it is in the instant case, that the negligence of the learner was imputable to the licensee rider, so as to make him guilty, as a matter of law, of contributory negligence. The applicable New York statute provided that: "The holder of a learner's permit shall not operate or drive a motor vehicle unless at all times under the immediate supervision and control of a driver duly licensed". Vehicle and Traffic Law, § 20, subd. 4, par. b, McK. Consol.Laws, c. 71. Note that this language is almost identical with section 253 of our Vehicle Code. But the New York statute went beyond the language of the California section. After providing that it was unlawful for an unlicensed person to give instructions in driving to anyone, the statute provided that any licensee "when instructing another, shall be liable with him for any breach of this article or of the general highway traffic law, or of any local ordinance, rule or regulation."

In spite of the fact that the New York statute, unlike its California counterpart, makes the licensee criminally liable for the acts of the permittee the New York Supreme Court held that its statute did not result in the imputation of the negligence of the permittee to the licensee in a civil action. The Court pointed out that the supervision and control granted the licensee is over the person of the permittee and is not over the vehicle being driven. That is equally true of the California statute, which certainly does not grant the licensee physical control over the permittee's vehicle. The New York court also pointed out that at common-law there was no doctrine of...