*1 circumstances, we In view L.R.A.N.S. is unreasonable. imposed here say that the condition petition discharged, and cause The order show denied. Schauer, J., J.. Traynor, J., Carter,
Shenk, J., Edmonds, J., J., Spence, concurred. March denied rehearing Avas application for a Petitioner’s 6, 1952. Feb. In Bank. A. No. 22125. 1952.]
[L. BENTON, minor, BEATRICE J. etc., al., Respondents, et L. D. SLOSS, Appellant. *3 Appellant. & Hamilton and John W. Mclnnis Melnnis Harry Respondents. Ashfield & Johnson and Johnson & Amici Re- Belli, Pinney, as Curiae behalf of Ashe spondents. May 23, 1947, Jay
TRAYNOR, On Friday, defendant J. 19-year-old boy, selected at defendant Fetters, Sloss’ used purchased days had five 1935 Chevrolet that Sldss car lot a Jay age whether he did not ask had a earlier. Sloss Jay driver’s paid license. down payment, $75 $100 and Sloss allowed him Saturday to take the home. On car afternoon, Jay returned with $25 the car and the balance of payment. filling the down contract, While out sales Jay discovered that complete was minor and refused contract signed Jay unless father it. left the lot about 5 o’clock with car and a form for contract his father to sign. sign. The father refused to He I testified that “when looked nothing at the car and seen it was a wreck I but called up and him car; told to come and get the kid it; had no business with that he had driver’s license and no experience, and that nothing wreck, it was but a but pick up.” wouldn’t The Jay father then told to return Jay the car. night drove it to the lot again and Sunday morning, but Sloss was not there at either time.
After leaving car on Sunday morning, Jay lot met two girl friends, minor Beatrice Benton Alden, plain- and Marlie action, in boy (Richard tiffs this and Kasitz, friend and country. They took them for a ride accompanied were by another driven Elden Earnest. The two drivers racing alternately passing each other on a two-lane highway per about 45 Jay at miles hour. As passing Elden’s car, suddenly emerged another car from dipa in the collision, road. To avoid a head-on swerved to right, passed in front of Elden’s car and behind a car immedi- ately travelling ahead Elden the same direction. Since horn, Chevrolet did not have a could not warn Elden pull over or hitting slow down. To avoid the car in front Elden, applied right his brakes. The rear wheel locked and the left operate. wheel brakes failed to His car highway, leaving skidded across the black skid marks on the only. Jay attempted side to drive onto the shoulder highway, telephone pole by but the ear slid into a highway. injured by Plaintiffs were the collision of the car telephone pole. with the Jay, against Sloss, action filed this
Plaintiffs jury, plaintiff was tried without a case and each father. *4 against Judgment and Sloss. judgment was recovered of father. Defendant favor Sloss alone in returned appealed. has liability he contends that is absolved from first protects Code.* the Vehicle This statute 403 of section under any guest accepts upon in a ride person a a who as vehicle *"No compensation ride, any giving for such nor highway other without conduct for legally liable persons and all driver The driver ordinary negligence. for liability to by his intoxi injuries guests caused to his liable, however, for in of no evidence There is misconduct. or wilful cation that court found present case, but the trial in the toxication operating in a defective guilty wilful misconduct of racing experience, and it without car, operating cannot be held Sloss, however, against another ear. highway misconduct, there was since 403 for wilful under section Halsey, agent. v. showing (Stober that was Sloss’ 318].) For the same 660, 665 P.2d Cal.App.2d [199 Code, 402, section be held under Vehicle reason liability opera negligent of imputing owner a vehicle for relationship be principal-agent tion, for, in the absence of liable for the owner and the owner driver, tween Piny (Weber an, 9 Cal.2d the driver’s wilful misconduct. v. 407].) P.2d A.L.R. [70 case, however, present plaintiffs In seek to hold Sloss negligence, person legally respon and not for his own as sible for the driver’s acts under or as an owner section (See Piny an, under Weber supra, section 402. v. 9 Cal.2d 226, 237.) against Section 403 bars “driver” actions ‘1 against any or person legally of vehicle other liable for the phrase such driver.” “person legally conduct of liable” clearly the driver’s conduct is intended to cover cases in vicariously which owner is liable for the driver’s conduct relationship because of the parties, principal-agent, as of imputed negligence (Stober or because under section 402. Halsey, Stephen supra; v. Spaulding, Cal.App.2d v. P.2d Section 403 does limit the common- [89 liability law the owner of a vehicle for his own as owner.
Sloss contends since the owner of an would automobile guilty ordinary negligence failing proper be to make repairs, and protected would be section if driving the car at the (Rhoads Studley, time of the accident Cal.App.2d 1082]; Frazier, Cal. Ohlson v. App.2d 708 P.2d 429]), purpose of the section damages against any person, civil the driver of action has any person legally against other liable for the con- of such vehicle or personal injury or the death of on account duct such driver plaintiff ride, during guest unless the such action such such proximately injury death resulted from the such establishes ’’ of said or wilful misconduct driver. intoxication *5 negli- be defeated if he for the act were held liable same gence merely driving because he was not at time of the the accident. 403, however,
Section refers to owners nowhere only persons liability vehicles. The are absolved the driver legally responsible and those for his acts. Sloss was not the against driver and the him not action is based on any responsibility might he have for the driver’s conduct. bring Sloss would himself by construing within the section “driver” to “owner,” include but the section does admit not that plaintiffs construction. Moreover, guests, Sloss’, position anyone and are in the same as else who injured because Sloss failed to maintain vehicle in proper mechanical condition. The controlling question, therefore, is whether Sloss was negligent and if so contributing whether his was a cause of the accident.
Although safety a used ear insure dealer does not of a sells, car he duty and is under no to disassemble the car parts, to examine its inspection he must make a reasonable for defects highways. that would make the ear a menace on the (Supera v. Corp., Moreland Cal.App.2d 186, Sales 595]; Egan Bruner, Chevrolet Co. v. F.2d 375; Flies v. Fox Bros. Co., Buick Wis. N.W. ; A.L.R. 680; see Prosser, Torts, p. 357] 997; A.L.R. 240.) A.L.R. 660 of
Section provides: Vehicle Code “No dealer shall sell a used motor vehicle testing without first and if necessary adjusting lights on brakes such to conform vehicle ’’ provisions with the adequate this code. The standards for brakes are set forth in section 670 of the Vehicle Thus, Code. a motor vehicle equipped adequate must be with brakes bring it complete to a stop 188 feet, operated within when it speed a per at dry asphalt 45 miles hour or concrete pavement grade per where the does exceed 1 cent.
Although testified given that he had road days before proposed five sale to test about operated then satisfactorily, had brakes there any made test of the brakes evidence to determine they prescribed by met the whether standards this section. inspect did not mechanics do work on the Sloss’ brakes. shortly delivery of the The failure brakes after of the car present indicates that the defect was and discernible testimony proposed of the sale. at at time Sloss’ best court re- trial evidence, which a conflict created reasonably could trial court plaintiffs’ favor. solved have disclosed inspection a reasonable conclude that supra.) Bruner, (Egan Chevrolet Co. defective brakes. court could opinion trial that the are also We contributing negligence'was reasonably conclude that Sloss’ testimony, corroborated injuries. plaintiffs’ cause of on the by the marks testimony skid of his *6 right the car rear wheel of pavement, that the established the most Jay apply the brakes. At attempted locked when to Jay locked. de part operation, of the brakes critical the I put “Elden his brakes and tried scribed the situation: on my cars], I brakes get to them two and hit in between [the [Jay’s flsh-tailed, it and the wheel locked and back car] I me, I in front of so didn’t want to hit the fellow cramped wheels the went clear over to hit the shoulder and gravel right had a pole.” and it slid into The shoulder the Jay pavement, off the was surface and once the car skidded Jay’s guests, get highway. back on the One of unable to it Kasitz, swung to the Richard testified that kept turning the Jay applied although Jay when the brakes, steering to the wheel left.
Jay’s negligent driving unquestionably of was a cause injuries. plaintiffs’ also cause of Sloss’ was bringing injuries, if it factor in those was substantial (McEvoy 295, Corp., 32 them about. v. American Pool Cal.2d of 783]; Rest., Torts, 431.) question P.2d This 298 [195 § light In the plaintiffs’ fact the trial court resolved in favor. reasonably it that because of of the evidence could conclude Jay the defective brakes collision. could not avoid the Since say men we cannot that the issue so clear that reasonable differ, finding the trial court’s must be sustained. injury question falls within remains whether The consequences legal responsibility for of Sloss’ limits reasonably foresee that brakes of his conduct. could Sloss ordinary arising under emergency would used in conditions be 647, 14 Norman, Cal.2d highway speeds. (See Nebelung v. Jay 327].) negligent did P.2d The conduct [96 negligent liability, likelihood of relieve from Sloss that Sloss operation one hazards of the vehicle was Co., (Mosley reasonably v. Arden Farms could foresee. McEvoy 372, 872]; 219, 158 A.L.R. 213, Cal.2d P.2d [157 Lacy supra, 295, 298; v. Corp., v. American Pool 32 Cal.2d Opple v. Co., 781]; Gas Elec. & 220 Cal. P.3d [29 Pacific Ray, 81]; Rest., Torts, 447.) 208 Ind. N.E. see § possibility negligently placing
The of a driver’s himself position in a from which he could not extricate himself without adequate duty imposed adjust test and brakes Sloss a to car, prevent endangering brakes thus occupants, pedestrians, lives of and other of the users highway. (Veh. Code, 660; Co., Fox Flies v. Bros. Buick § supra; Forman Shields, Wash. ’ duty only prospective buyer, extended not persons but to third reasonably expected who be could to be in the vicinity probable use the automobile. (Flies Co., v. Fox Buick supra (pedestrian); Prosser, see Torts, p. 680; Rest., Torts, injury 392.) to §§ was therefore within the risk created the limits of negligence. Sloss’ given permission only contends that
take the automobile to his father’s home him to induce sign the Therefore, argues, contract. the use of the car pleasure trip day following on the was without his implied express permission. The evidence shows that Sloss allowed to take car home on afternoon o’clock, only about knowing years he was old. Sloss reasonably could expect, and anticipate indeed with a sale mind, only performance test the *7 but pleasure pending drive it for negotiation the contract. Sloss’ own absence from precluded Jay’s the lot returning the He car. closed lot Saturday about 7 o’clock night and although went to a game, ball father had telephoned earlier and asked Sloss to come for the car. The Sunday lot likewise closed on morning. Under these circumstances, it cannot be operation said that Sunday beyond car on was a risk that created when Sloss allowed take ear from the lot on afternoon. judgment is affirmed. Gibson, J., Shenk, J., C. Edmonds, J., Carter, J., and Spence, J., concurred.
SCHAUER, J., Dissenting. I donot view the evidence as finding sufficient to sustain a guilty negli Sloss was gence proximately contributing accident; neither do judgment against I find the sustainable, upon record, theory tenable of law. Accordingly, I should reverse judgment.