Opinion
Docket No. L.A. 8909.
December 12, 1927.
APPEAL from a judgment of the Superior Court of Los Angeles County. Walton J. Wood, Judge. Reversed.
The facts are stated in the opinion of the court.
Edward Everett for Appellants.
Underwood, Burke Cree for Respondent.
This is an appeal by the defendants Dana G. Bing and Anna H. Bing from a judgment rendered against them and each of them and also against their minor son, Gerald Bing, in plaintiff's favor in an action instituted by the latter to recover damages for personal injuries alleged to have been sustained as the result of a collision between two automobiles, one of which was being driven by said minor son of the appellants herein, neither of whom was present at the time of the collision. The chief error of which the appellants complain is that committed by the trial court in denying their motion for a nonsuit at the close of the plaintiff's case, which motion was made upon the ground that there was no sufficient evidence in the case tending to show that their said minor son in the operation and use of said automobile at and immediately prior to the time of said collision was acting as the agent of them or either of them, or that at the time of the collision he was engaged in doing any act for the consequences of which they were as a matter of law responsible. The evidence in the case upon which said motion was predicated was briefly as follows: The automobile in question was the community property of the parents of said Gerald Bing, but was registered in the name of the father, Dana G. Bing. Gerald Bing was, at the time of said accident, between sixteen and seventeen years of age. He had driven the automobile of his parents previously upon occasions, although he had no general permission so to do, his use and operation of the automobile being that of driving his father to and from his office frequently. No license to operate automobiles had ever been issued to him, nor had any application for such right ever been made. On the evening in question, and during the absence of his parents from their home, Gerald Bing undertook to drive his sister and several of her boy and girl friends to a party, and, having done so, to convey another boy friend of himself to a theater which they were to attend. It was while thus engaged that the collision between the automobile of the Bings and an automobile of their co-defendant West occurred, as a result of which the plaintiff, who was standing on the sidewalk and in no way connected as a passenger or otherwise with either of the automobiles, received her injuries. At the close of the plaintiff's case, wherein the foregoing facts had been shown, a motion for nonsuit was made on behalf of said defendants, appellants herein, Dana G. and Anna H. Bing, upon the grounds hereinbefore stated, which motion the trial court denied, and thereafter proceeded to give to the jury certain instructions of which the appellants herein also complain. Upon the submission of the cause to the jury a verdict in the sum of five thousand dollars damages was rendered against the appellants herein and also against their minor son, Gerald Bing. It is the contention of the appellants that their motion for nonsuit should have been granted. The only brief on file herein is the opening brief of the appellants, the respondent having filed no answer thereto, but on the trial having stipulated that the cause might be submitted upon the appellants' brief on file. [1] There would seem to be no escape from the conclusion that the trial court was in error in denying the appellants' motion for nonsuit in the light of the decision of this court upon an almost identical state of facts in the recent case of Perry v. Simeone, 197 Cal. 132 [ 239 P. 1056], and also of the conclusion arrived at by this court in the case of Idemoto v. Scheidecker, 193 Cal. 653 [ 226 P. 922], in each of which cases the situation of the appellants as to their liability for the act of their minor child is practically identical with the situation of the appellants in the instant case. In the absence of any showing that the appellants herein, or either of them, had signed an application to the state motor vehicle department for the issuance of an operator's license to their minor son, and in the absence of any showing that their minor son was either in fact or to their knowledge a careless or incompetent driver, and in the absence of any evidence that he was engaged in any business or affair on behalf of his parents at the time the plaintiff suffered the injuries complained of, it would seem to be clear that upon the foregoing authorities the appellants herein could not be held responsible for the plaintiff's said injuries, and it follows necessarily that the trial court was in error in its denial of the appellants' motion for a nonsuit at the close of the plaintiff's case. This conclusion renders it unnecessary for us to consider the alleged errors of the trial court in its instructions to the jury.
The judgment is reversed.
Shenk, J., and Langdon, J., concurred.
Hearing in Bank denied.