Carver v. Donin , 9 Cal. App. 2d 634 ( 1935 )

SHINN, J., pro tem.

This is an appeal by defendant Cora Girino, owner of an automobile, whose liability under the judg ment for damages rendered against her was founded on section 171414 of the Civil Code.

The facts are the same as stated in the opinion in Carver v. Donin, Civil No. 9694 (ante, p. 631 [50 Pac. (2d) 883]), this day decided. The points raised on appeal, with a single exception, are decided in that case. The additional point is raised by the following question: “Under section 17141/4, Civil Code, is the borrower, as well as the operator of the owner’s automobile, a necessary, as well as a proper, party defendant to render the owner liable for the owner’s statutory liability 1 ’ ’ The answer to this question is that the borrower, unless he be the operator, is not a necessary party, because upon these facts alone, he is under no liability. The evidence shows, without conflict, that defendant Girino loaned her automobile to her brother, who allowed defendant Bonin to drive it. The brother who borrowed the car was not operating it at the time of the accident.

The judgment in this case is in the same form as that in the case of Carver v. Donin, supra, this day decided, and for the reasons stated in that case, it is modified so as to read as follows: “That the plaintiff Grant Carver do have and recover of and from the defendant Abe Bonin the sum of $2,653.95, and that said plaintiff do have and recover of and from the defendants Abe Bonin and Cora Girino jointly the further sum of $5,000, together with his costs which are hereby taxed in the sum of $69.75. ”

The judgment is affirmed as modified.

Houser, P. J., and York, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the Bistrict Court of Appeal, was denied by the Supreme Court on Becember 30, 1935.