Fox v. Schuster , 50 Cal. App. 2d 362 ( 1942 )

50 Cal. App. 2d 362 (1942)

LILLY S. FOX, Respondent,
v.
CHARLES SCHUSTER et al., Appellants.

Civ. No. 13154.

California Court of Appeals. Second Dist., Div. Two.

Mar. 6, 1942.

Reginald I. Bauder for Appellants.

James S. McKnight, Mark F. Jones and W. L. Engelbright for Respondent.

WOOD (W. J.), J.

Plaintiff commenced this action to recover damages for injuries which she suffered when the automobile in which she was riding collided with defendants' automobile. A jury rendered a verdict in favor of plaintiff in the sum of $2,821. Defendants have appealed from the ensuing judgment.

[1] At the time of the collision plaintiff was riding in her own car, which was being driven by one Klinepeter with her consent. The trial court instructed the jury that "the driver's negligence, if any, may not be imputed to the plaintiff, ... therefore, you shall find that there was no contributory negligence on the part of the plaintiff." The only issue which requires determination on this appeal concerns the contention of defendants that the court erred in giving this instruction.

Since the filing of the briefs a decision was rendered by our Supreme Court in Milgate v. Wraith, 19 Cal. 2d 297 [121 P.2d 10]. It was there held that by virtue of the 1937 amendment of subdivision (a) of section 402 of the Vehicle Code the negligence of one who is driving an automobile with the permission of the owner is imputable to the owner in an action by the owner against the driver of another car. The decision in the Milgate case makes necessary a reversal of the judgment in the case now before us. It is so ordered.

Moore, P. J., and McComb, J., concurred.