Plaintiff sought damages for personal injuries against defendants Huesby and Juett, the former being the operator of a certain Dodge automobile involved in the accident, and the latter being the owner thereof. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiff and against said defendants in the sum of $1570, defendant Juett appeals.
Defendant contends that the evidence wаs insufficient to sustain certain findings of the trial court in which it was found that defendant Huesby was acting as the agent of defendant Juett and that defendant Huesby was driving the *644 automobile of defendant Juett with the permission of said defendant Juett. It is conceded, however, that if the evidence was sufficient to sustain the finding that defendant Huesby was driving defendant Juett’s automobile with the permission of the latter, the judgment should be affirmed. Wе are of the opinion that the evidence was sufficient for that purpose and we therefore deem it unnecessary to discuss the question of the sufficiency of the evidence to sustain the finding of agency.
Section 402 of the Vehicle Code imposes liability upon the owner of an automobile when the driver, whose negligent operation of the automobile caused the injury, operated the automobile “with the permission, express or implied, of such owner.” It is therefore apparent that the permission may be either express or implied and that evidence showing an impliеd permission is sufficient to sustain the above-mentioned finding and judgment.
Speaking of the word “implied”, it is said in Black’s Law Dictionary, third edition, page 924, “This word is used in law as contrasted with ‘express’; i. e., where the intention in regard to the subject-matter is not manifested by explicit and direct words, but is gathered by implication or necessary deduction from the circumstances, the general language or the conduct of thе parties.” Defendant admits that “prior knowledge that the driver intends to use the car is not necessary to find an implied permission”, for as was said in
Phipps
v.
Shacklett,
The accident in the present case oсcurred around 11:00 P. M. on the highway between Pittsburg and Antioch. Plaintiff was riding in an automobile which was struck by the automobile operated by defendant Huesby and owned by defendant Juett. At that time defendant Huesby was accompanied by his wife and a Mr. Baby. He was driving from his home in Pittsburg to Antioch, a distance of about five miles, for the purpose of returning Mr. Baby to Antioch from *645 whence Mr. Baby had been driven a few hours earlier by defendant Juett. Defendant Juett was not in the automobile at the time but was asleep at the home of defendant Huesby in Pittsburg.
Defendant Juett owned a beer and soft drink parlor in Antioch. He also was a commissiоn salesman for Investor’s Syndicate, a concern which sold some form of investors’ certificates. Defendant Huesby was the manager of a brokerage company in Pittsburg which company was engаged in the loan business. Said defendants were intimate friends and visited each other frequently. Mr. Baby had become acquainted with both defendants but was not an intimate friend of either.
Defendant Juett was apparently very liberal in permitting his friends and prospective customers to use his automobile. He testified, 1 ‘ I have always been very liberal that way, tried to help out. Anybody can drive my car if I think they are right. ... I genеrally like to have them tell me where they are taking it. . . . Every day it is being done. . . . Most every day around my place, someone will come in and say, ‘Juett, I have to go up here a block or two, can I use your car?’ ‘Sure’. . . . They generally come to the door and holler.” He further testified that it was his habit to leave his keys in his ear. On a previous occasion defendant Huesby had used a truck belonging to defеndant Juett. Defendant Juett testified that he knew that defendant Huesby was moving at that time and he thought he “volunteered the truck” for defendant Huesby’s use without being asked for it.
There are some minor conflicts in the evidence regarding what was said and done on the evening in question but on this appeal we must resolve these conflicts in favor of plaintiff. It appears that Mr. Baby met defendant Juett in the latter’s place of business in Antioch on that evening and that said defendant invited Mr. Baby to take a ride with him to Pittsburg. He testified “My purpose was to see Huesby on Investors’ Syndicate and just meeting Baby, I thought it was a good time to gеt acquainted with him, always looking for business.” In other words, defendant Juett believed both men were business prospects. Before consenting to go to Pittsburg, Mr. Baby told defendant Juett that he had to go to work at midnight and defendant Juett assured him that he would get him back. Mr. Baby left his own car in Antioch and the two men proceeded to Pittsburg *646 and to the home of defendant Hnesby in the car of defendant Juett arriving at about 8 P. M. Therе they visited with defendant Huesby and his wife, the two defendants conversing together most of the time regarding Investors’ Syndicate while Mr. Baby and Mrs. Huesby had a conversation. There was considerable beer consumеd during the evening. Defendant Juett had brought eight pints himself, all of which was consumed. He admitted that he drank a quart of beer at the Huesby home. He had been up all night the previous night, had been drinking beer that afternoon, hаd not had dinner, and he became sleepy as the evening wore on. On several occasions during the evening, Mr. Baby mentioned the fact that he had to get back to Antioch in time to go to work. Finally dеfendant Juett fell asleep on the davenport and Mr. Baby became very anxious about getting back. Defendant Huesby then undertook to drive Mr. Baby back in order to avoid the necessity of awakening his good friend from his much needed sleep.
As they left the house, it was noticed that defendant Juett’s car partially blocked the driveway in which defendant Huesby’s car was parked. The last-mentioned car was seven years old and the headlights were defective. Defendant Huesby said, “We’ll take Fat’s car,” meaning the ear of defendant Juett. The keys had been left in the car according to the custоm of defendant Juett and the parties started for Antioch in that car, leaving defendant Juett slumbering at the Huesby home. When asked why he did not awaken defendant Juett and request express permission to use the car, defendant Huesby testified, “Well, he was a good friend and he seemed to be very tired and we didn’t think it was necessary to do that.” Defendant Juett was not awakened until about 1 A. M. when someone was sent to the Huesby home for that purpose after the accident had happened.
Defendant Juett did not criticize defendant Huesby for using the car and upon the trial he testified that such use of his car on the night in question was perfectly agreeable to him. After the accident and before the trial, plaintiff told defendant Juett that he understood said defendant was claiming that defendant Huesby had no permission to use the car. Said defendant replied, “After this accident, I was faced with four damage suits amounting to $75,000. *647 You see what kind of a spot I was in and I had to rely on some out.”
In disposing of this appeаl, we do not deem it necessary to discuss the question of whether a mere showing of ownership by defendant Juett was sufficient to give rise to an inference of permissive use by defendant Huesby. This question is touсhed upon but not decided in the recent case of
Engstrom
v.
Auburn Automobile Sales Corp.,
11 Cal. (2d) 64 [
The judgment is affirmed.
Nourse, P. J., and Sturtevant, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 28, 1939, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 25, 1940.