170 P. 417 | Cal. Ct. App. | 1917
This is an action for damages for personal injuries and damage to personal property arising out of a collision between an automobile owned and driven by plaintiff and one owned by appellant, George P. Fuller, but driven by his wife, the defendant May A. L. Fuller.
Under the terms of section 171a of the Civil Code a husband is not liable for the torts of his wife "except in cases where he would be jointly liable with her if the marriage did not exist." It is not here claimed that the appellant kept this car for the use of his wife, and that at the time of the accident it was being used for the purpose for which it was purchased and kept, in which event, in every just sense and according to the weight of authority, she would be regarded as his agent, on the theory that it is as much the duty of the husband to furnish to his wife, within his means, recreation and pleasure, as it is to furnish her with food and clothing. (Missel v. Hayes,
In the New York case of Ferris v. Sterling,
The same rule is established in New Jersey. InEdgeworth v. Wood,
In Gershel v. White's Express Co., 113 N.Y. Supp. 919, it is said: "The proof that the colliding wagon bore the name 'White's Express Company,' taken with the defendant corporation's failure to give any evidence tending to show that it did not operate the particular wagon, although it had admitted by its answer that it did operate and control wagons and vehicles in and about the streets of the city, sufficed for a prima facie case of ownership. . . . Damages, within the verdict, were proved by testimony as to the actual expense of making adequate repairs to the article injured; . . . "
And in Shearman and Redfield on Negligence, volume 1, section 158, sixth edition, the authors state the rule, as gleaned by them from the authorities, thus: "When the plaintiff has suffered injury from the negligent management of a vehicle, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person, for whose negligence the owner would not be answerable."
It must be conceded that the complaint was defective; but we think the error in overruling the demurrer thereto must be regarded as harmless, the appellant having had a full opportunity at the trial to rebut the inferences arising from his ownership of the automobile, the negligent driving of *292 which was the cause of the plaintiff's damage, and to show fully, if he desired to do so, any facts and circumstances which would have absolved him from liability.
The judgment is affirmed.
A petition 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 10, 1918, and the following opinion then rendered thereon:
THE COURT. — In denying the application for a hearing in this court after decision by the district court of appeal of the first appellate court, we deem it proper to say that, as we understand the opinion as to the effect of proof that the car in question was owned by the appellant and was being operated by his wife at the time of the accident with his express consent and permission, it is simply that a prima facie case was thereby established, authorizing an inference by court or jury, in the absence of substantial proof to the contrary, that the wife was using the car as the agent of the husband.
The application for a hearing in this court is denied.