184.

Mr. Wiles W. Newby, for appellees:

The owners of the automobile were not liable.

Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946, 18 Am. Neg. Rep. 412; Lotz v. Hanlon, 10 Ann. Cas. 731 and notes, 217 Pa.

339, 10 L.R.A. (N.S.) 202, 118 Am. St. Rep. 922, 66 Atl. 525; Ouellette v. Superior Motor & Mach. Works, 157 Wis. 531, 52 L.R.A. (N.S.) 299, 147 N. W. 1014, 6 N. C. C. A. 357; Mattei v. Gillies, 16 Ont. L. Rep. 558, 21 Ann. Cas. 970; Hartley v. Miller, 165

As to liability of owner for injury inflicted, by car while being run by one to whom it has been intrusted for storage or repairs, see note to Segler v. Callister, 51 L.R.A. (N.S) 772. The purpose of the present note is to bring together the cases passing upon the liability of the owner of an automobile for injuries due to the negligence of a third person who is running the car for his own purposes, and not for any purpose of the owner, so that the doctrine of respondeat superior does not apply.

There are three different classes of cases within the scope of the note: (1) Cases where the car was taken without the consent of the owner; (2) cases where the owner in. trusted the car to a competent and ordinarily careful person, who, however, was negligent on the particular occasion; (3) cases where the owner intrusted the car to a person who was known to be incompetent or negligent, or not known to be competent or careful.

336, 1 N. C. C. A. 126; Neff v. Brandeis, 91 Neb. 11, 39 L.R.A. (N.S.) 933, 135 N. W. 232; Danforth v. Fisher, 75 N. H. 111, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. 670, 71 Atl. 535; Gerretson v. Rambler Garage Co. 149 Wis. 528, 40 L.R.A. (N.S.) 460, 136 N. W. 186.

An automobile is not per se a dangerous machine.

Hartley v. Miller, 165 Mich. 115, 33 L.R.A. (N.S.) 81, 130 N. W 336, 1 N. C. C. A. 126; Steffen v McNaughton, 142 Wis. 49, 26 L.R.A. (N.S.) 382, 124 N. W. 1016, 19 Ann. Cas. 1227; Jones v. Hoge, 47 Wash. 663, 14 L.R.A. (N S.) 216, 125 Am. St. Rep. 915, 92 Pac. 433.

theory that, even in so using the car, he was carrying out the purpose for which the car was purchased and kept; and it would seem that that theory might be susceptible of extension to some cases where the person using the car for his own pleasure was an employee of the owner, and not a member of the latter's family. As previously stated, however, the present note is concerned only with the question of the owner's liability when the doctrine of respondeat superior is inapplicable. Comparatively few of the cases that have denied the liability of the owner upon the ground that the doctrine was inapplicable have considered the possibility of holding him liable upon the theory of dangerous agency, where he intrusted the car to the person whose negligence caused the injury.

The attempt made to invoke the doctrine of dangerous agency in this class of cases has met with but little favor. In view, however, of the potentiality of high-powered automobiles for mischief, and the growing and increasing danger of injury to innocent persons through the negligence or incompe

In nearly all the cases of the second class the liability of the owner has been denied. Cases presenting the second situation, that is, where the owner permits a competent and ordinarily careful person to use the car for his own purposes, and the latter is negligent on the particular occasion, are very numerous. In most of these cases, however, the question has turned upon some phase of the doctrine of respondeat superior. As shown in the notes in 41 L.R.A. (N.S.) 775, and 50 L.R.A. (N.S.) 59, already referred to, some of the cases have extended that doctrine sufficiently to hold the owner responsible for an injury due to the negligence of a member of his own family, though the latter was using the car for his own pleasure, upon the

The petition alleges that the defendants Leitzen are owners of a garage in the town of Mapleton, where they keep automobiles for sale and hire, and hold themselves out to the public as being engaged in that business; that in pursuit of such business and occupation they let for hire to the defendant Kraft a Ford automobile, knowing at the time that Kraft would himself run and operate the car, and was intending to drive it to the town of Ute, where there was to be a large gathering of people attending a carnival of sports. It further alleges that the Leitzens well knew that an automobile driven by an unskilled driver, or by one not familiar with a car of that pattern, was a

It is not apparent that a rule holding. the owner of an automobile liable for the negligence of the person to whom he intrusts the car, at least a person generally employed or authorized to use the car, although upon the particular occasion he is using it for his own purposes, would involve any essential injustice, or at least injustice comparable to that which the injured person frequently suffers under the present state of authorities. The owner may protect himself against the increased liability, either by refusing to lend the car or by taking out insurance against liability from this source.

It may be noted in this connection that the statute which in Daugherty v. Thomas, 45 L.R.A. (N.S.) 699, was held contrary to the due process and equal protection clause of the Constitution, purported to render the owner liable for injuries to strangers though the car was being used without his knowledge or consent, and that the refusal, in the subsequent cases cited in the note to that case, to apply the statute so as to hold the owner liable when he permitted the car to be taken, seems to have been due to the inability to separate the valid from the invalid portion of the statute.

crowds; that said defendants were informed that Kraft had no knowledge of the mechanism of a Ford car, and in fact had never driven one, yet, knowing these facts and the danger attending his use of said car, they carelessly and negligently let the car to said Kraft for the purposes above mentioned. It is further alleged that plaintiff was a spectator, with others, at the car│nival in Ute, and in the exercise of reasonable care on his part he was struck and severely injured by said Ford car being then and there operated by said Kraft without due skill and care, as he was being permitted to do through the negligence of the defendants Leitzen. For the injury thus sus'tained he demands judgment for the recovbeing used by another for his own purposes, on the theory that such a machine is a dangerous agency, and have in general allowed recovery only in cases where the circumstances were such as to bring the case within the principle of respondeat superior.

In accord with the foregoing statement, in the following cases it was held that an automobile is not a dangerous instrumentality to be classed with locomotives, ferocious animals, etc., and that the owners of such machines are not liable on the theory of dangerous agency for injuries occurring while they are being used by third persons for their own purposes, either with or without the owners' consent: Hartley v. Miller, 165 Mich. 115, 33 L.R.A. (N.S.) 81, 130 N. W. 336, 1 N. C. C. A. 126 (car being used by borrower who was accompanied by owner); Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057 (chauffeur using for own pleasure with owner's consent); Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096 (use by owner's son with former's consent); Fielder v. Davison, 139 Ga. 509, 77 S. E. 618 (use by chauffeur without owner's consent); Tyler v. Stephan,

The great weight of authority, however,

has refused to hold the owner of an automobile liable for injuries sustained while it is

business); Danforth v. Fisher, 75 N. H. 111, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. 670, 71 Atl. 535 (use by chauffeur for his own purposes without owner's consent); Steffen v. McNaughton, 142 Wis. 49, 26 L.R.A. (N.S.) 382, 124 N. W. 1016, 19 Ann. Cas. 1227 (car being used by owner's chauffeur without his knowledge or permission).

And this principle was adopted in Goodman v. Wilson, 129 Tenn. 464, 51 L.R.A. (N.S.) 1116, 166 S. W. 752, involving the liability of one joint owner for an injury occurring while the automobile was on the way to the office of the other joint owner in charge of a chauffeur hired by the joint

owners.

The court in Tyler v. Stephan, supra,

The

ery of damages from all the defendants. defendants admit the keeping of a garage by the Leitzens; that they let a Ford automobile to Kraft, and knew that he intended to use it in taking his family to the carnival at Ute. They admit, also, that plaintiff was injured by a wire, which was accidentally struck by said car while being operated by Kraft, but they each and all deny any negligence on their part with respect to the use of said car or to the injury suffered by plaintiff. The evidence, so far as material to the appeal, tends to show that Kraft was accustomed to operate automobiles, but had no previous experience with a Ford car. At the time he hired this car one of the defendants got into the car with Kraft and backed the car out of the garsaid: "The rule of law applicable to the care and protection of dangerous instrumentalities does not apply. That rule requires the master to exercise a proper degree of care to guard, control, and protect dangerous instrumentalities owned or operated by him, and to respond in damages for an injury incurred by reason of the improper use of such an instrumentality by a servant, though not then engaged in the performance of his duties. The principle on which liability is founded in such cases is the failure of the master properly to keep within his control such dangerous agencies. Manifestly, an automobile, which becomes dangerous only when negligently operated, cannot properly be placed in the same category with locomotives, dynamite, and ferocious animals. Consequently, the courts have generally rejected this ground of liability.'

age and gave him some instruction or direction as to its use. Kraft then drove the car to the vicinity of another garage or shop, where he was further instructed as to the manner of operating a Ford. He then drove to Ute, and while there, operating it in a manner which a jury might properly find to have been negligent, caused the injury to plaintiff. Plaintiff having made this showing and rested his case, the court sustained the motion of the defendants Leitzen for a directed verdict in their favor. The plaintiff appeals.

1. In argument for appellant counsel contends that one who lets an automobile for hire is responsible for the proper skill and care of the person to whom he intrusts it. In support of this position we are cited to year-old son was using it, by reason of his ownership of the car or of the fact that he permitted his son to drive it whenever he wished.

And in Freibaum v. Brady, 143 App. Div. 220, 128 N. Y. Supp. 121, where the defendant's car had been loaned, no direct reference was made to dangerous agency, but it was held that an owner of an automobile could not be held liable simply because he owned the car.

There was held to be no cause of action stated in Doran v. Thomsen, 74 N. J. L. 445, 66 Atl. 897, reversed on another ground in 76 N. J. L. 754, 19 L.R.A. (N.S.) 335, 131 Am. St. Rep. 677, 71 Atl. 296, where it was alleged that the defendant owned an automobile capable of being run at a speed of 60 miles an hour on the highway, and that he negligently consented and allowed it to be run along the highway at a speed of 60 miles an hour by an inexperienced person, by reason of which it ran over and injured the plaintiff, the court remarking that the

And it was stated in McNeal v. McKain, 33 Okla. 449, 41 L.R.A. (N.S.) 775, 126 Pac. 742, where an automobile was being used by the owner's son for his own pleasure with the owner's consent, that an automobile is not a dangerous agency, and that the rules that apply at common law as to servants in charge of vehicles belonging to the master are applicable to chauffeurs or persons in charge of motor cars of the

master.

roneous assumption that because the defendant loaned his automobile to someone over whom he had no direction or control at the time of the accident, he should be held liable for the mere loaning, but that no liability attached to him by reason of this fact, unless it was being used in the owner's business at the time of the accident.

In another case it was held that, although a chauffeur employed by the owner of an automobile is not a competent and careful operator of such machines, the owner will not be liable on the theory that an automobile is a dangerous agency, for an injury resulting from the chauffeur's negligence while he is using his employer's car, which he has taken from the garage where it is kept without the owner's knowledge or permission for his own purposes. Jones v. Hoge, 47 Wash. 663, 14 L.R.A. (N.S.) 216, 125 Am. St. Rep. 915, 92 Pac. 433.

well be that under such circumstances the owner would be held liable in damages, not because the hirer is his servant, or because as owner he is required to vouch to the public for the competency of all persons to whom he may let his teams or his cars old, that he lacked judgment, discretion, and care to be expected of a mature person, and which was essential to the proper and careful operation of a vehicle so powerful as an automobile."

It was held in this case, however, to be reversible error to instruct that an automobile "when run upon the public highway is considered a dangerous appliance as a matter of law," the court remarking: "When carefully handled, it is not dangerous either to its passengers or to other persons using the public highways who are themselves in the exercise of reasonable care. Its great capacity and power endow it with dangerous possibilities, but human agency-wanton or negligent agency-must call them into play. It would seem paradoxical to say in one breath that an automobile is a lawful vehicle, and in the next that it is dangerous per se, as dynamite or a locomotive or a mad bull are dangerous. If it belonged to the latter class, the rules of the common law would not permit its presence on public highways for general use. So far as we are advised, the authorities are all one way on this question."

In Lynde v. Browning, 2 Tenn. C. C. A. 262, the court stated that, although automobiles were not dangerous agencies in such a sense as to make the owners absolutely responsible for all damage occasioned by collision in whosever hands they might be, yet in view of their propensities the most stringent regulations should be applied, and that a very high degree of responsibility rests upon owners, both as to their operation and in the selection of parties to whom they intrust them. The owner in this case was held liable on the ground of agency, for an injury inflicted while his car was being operated by his son for the latter's pleasure with the father's consent.

In Allen v. Bland, Tex. Civ. App. 168 S. W. 35, where an action was brought against the owner of a car which was being used with his consent by his son when an accident occurred, the court held that an automobile is not a dangerous appliance as a matter of law, but stated that it was not willing to hold that a powerful heavy machine in the hands of an 85-pound boy not yet in his teens, speeding along the streets of a populous town, might not become a menace to the lives of persons using the

streets.

for hire, but because he knew the incompetency of this particular driver and the imminent peril to which he thereby exposed others who were in the lawful use of the streets, and as a person of ordinary prudence should have refrained from so doing. jury as a consequence of permitting the child to drive the car, and that the defendant's negligence made it possible for the child to cause the injury, and by another instruction to the effect that if the owner permitted the boy to drive the car, and, because of the latter's inexperience and want of fitness and ability to run such a car, he should have anticipated that danger and injury were likely to result to others, and if the operator failed to exercise ordinary care to prevent injury to the plaintiff, and the owner's acts in permitting him to have and run the car were negligent, and the negligence of both defendants was the proximate cause of the plaintiff's injury,the owner would be liable. Ibid.

The general holding was not followed in Ingraham v. Stockamore, 63 Misc. 114, 118 N. Y. Supp. 399. It was there held that an automobile is a dangerous machine, and, while it was recognized that the owner would not be liable for an injury resulting while it was being used by another without the owner's consent, yet it was held that the owner was liable for an injury which occurred while his car was being used by his chauffeur for the latter's pleasure with his consent. The court said: "An automobile being a dangerous machine, its owner should be held responsible for the manner in which it is used; and his liability should extend to its use by anyone with his consent. He may not deliver it over to anyone he pleases and not be responsible for the consequences. The learned justice, in the prevailing opinion in Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057, says: 'It may be that it would be wise and in the public interests that responsibility for an accident caused by an automobile should be fixed to the owner thereof irrespective of the person driving it, but the law does not so provide.' I do not think so stringent a rule is necessary. In cases where an automobile is used without the consent of its owner, the latter should not be responsible; but in those cases where an automobile is operated on the highway with the consent of the owner, he should be responsible."

It has been held that the owner of an electric truck cannot be held liable on the theory of dangerous agency, for damage done by the truck, which was started by boys while it was standing unattended for a short time with brakes set and everything done that could be short of dismantling it, to render it inert, since the rules of law applicable to dangerous instrumentalities do not apply. Vincent v. Crandall & G. Co. 131 App. Div. 200, 115 N. Y. Supp. 600. And to the same effect is Berman v. Schultz, 84 N. J. T. W.