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Lakin v. Oregon P. R. Co. 15 Or. 220, 15 | Mich. 115, 33 L.R.A. (N.S.) 81, 130 N. W. Pac. 641; Forbes v. Reinman, 112 Ark. 417, 336, 1 N. C. C. A. 126; Neff v. Brandeis, 91 51 L.R.A. (N.S.) 1164, 166 S. W. 563; Neb. 11, 39 L.R.A. (N.S.) 933, 135 N. W. Meyers v. Tri-State Automobile Co. 121 232; Danforth v. Fisher, 75 N. H. 111, 21 Brinn. 68, 44 L.R.A. (N.S.) 113, 140 N. W. L.R.A.(N.S.) 93, 139 Am. St. Rep. 670, 71 184.
Atl. 535; Gerretson v. Rambler Garage Co. Mr. Wiles W. Newby, for appellees:
149 Wis. 528, 40 L.R.A.(N.S.) 460, 136 The owners of the automobile were not
N. W. 186. liable.
An automobile is not per se a dangerous Reynolds v. Buck, 127 Iowa, 601, 103 N.
machine. W. 946, 18 Am. Neg. Rep. 412; Lotz v. Hanlon, 10 Ann. Cas. 731 and notes, 217 Pa.
Hartley v. Miller, 165 Mich. 115, 33 339, 10 L.R.A. (N.S.) 202, 118 Am. St. Rep. L.R.A. (N.S.) 81, 130 N. W 336, 1 N. C. 922, 66 Atl. 525; Ouellette v. Superior Mo. C. A. 126; Steffen v McNaughton, 142 Wis. tor & Mach. Works, 157 Wis. 531, 52 L.R.A. | 49, 26 L.R.A. (N.S.) 382, 124 N. W. 1016, (N.S.) 299, 147 N. W. 1014, 6 N. C. C. A. 19 Ann. Cas. 1227; Jones v. Hoge, 47 Wash. 357; Mattei v. Gillies, 16 Ont. L. Rep. 558, 663, 14 L.R.A. (N S.) 216, 125 Am. St. Rep. 21 Ann. Cas. 970; Hartley v. Miller, 165 915, 92 Pac. 433.
As to liability of owner for injury inflicted, theory that, even in so using the car, he by car while being run by one to whom it has was carrying out the purpose for which the been intrusted for storage or repairs, see note car was purchased and kept; and it would to Segler v. Callister, 51 L.R.A. (N.S ) 772. seem that that theory might be susceptible
The purpose of the present note is to bring of extension to some cases where the person together the cases passing upon the liabil- using the car for his own pleasure was an ity of the owner of an automobile for in- employee of the owner, and not a member of juries due to the negligence of a third per- the latter's family. As previously stated, son who is running the car for his own pur. however, the present note is concerned only poses, and not for any purpose of the owner, with the question of the owner's liability so that the doctrine of respondeat superior when the doctrine of respondeat superior is does not apply.
inapplicable. Comparatively few of the There are three different classes of cases cases that have denied the liability of the within the scope of the note: (1) Cases owner upon the ground that the doctrine where the car was taken without the consent was inapplicable have considered the possi. of the owner; (2) cases where the owner in. bility of holding him liable upon the theory trusted the car to a competent and ordi- of dangerous agency, where he intrusted the narily careful person, who, however, was car to the person whose negligence caused negligent on the particular occasion; (3) the injury. cases where the owner intrusted the car to The attempt made to invoke the doctrine a person who was known to be incompetent of dangerous agency in this class of cases or negligent, or not known to be competent has met with but little favor. In view, or careful.
however, of the potentiality of high-powered It is clear that in the first class of cases automobiles for mischief, and the growing there is no ground upon which the owner and increasing danger of injury to innocent may be held responsible, at least in the ab- persons through the negligence or incompesence of any negligence on his part in guard-tence of financially irresponsible persons to ing against the unauthorized use of his car. whom cars are intrusted, it may be ques
In the third class of cases, as subsequent- tioned whether the courts, or at least the ly shown, there is a tendency, on the part legislatures, will not eventually adopt the of the later cases at least, to hold the owner position that the owner of a car who inresponsible because of his negligence in in- trusts it to another, at least to one generaltrusting the car to a person known to be in ly employed or authorized by him to run competent or negligent.
the car, shall be responsible for injuries due In nearly all the cases of the second class to the latter's negligence, even though upon the liability of the owner has been denied. the particular occasion he was running the Cases presenting the second situation, that car for his own purposes. is, where the owner permits a competent and Under the present state of authorities, & ordinarily careful person to use the car for pedestrian injured by the negligence of a his own purposes, and the latter is negligent person other than the owner, driving the on the particular occasion, are very numer- car on the highway in a grossly negligent ous. In most of these cases, however, the and reckless manner, frequently finds that question has turned upon some phase of the he is remediless, because, although the doctrine of respondeat superior. As shown owner of the car is financially responsible, in the notes in 41 L.R.A. (N.S.) 775, and 50 he had intrusted it for the particular occaL.R.A. (N.S.) 59, already referred to, some sion to a person financially irresponsible. of the cases have extended that doctrine Moreover, even though the car was in fact sufficiently to hold the owner responsible for being used for the purpose of the owner on an injury due to the negligence of a member the occasion in question, the present rule of his own family, though the latter was offers a strong inducement for perjury on using the car for his own pleasure, upon the the point.
Weaver, J., delivered the opinion of the dangerous machine to be driven among court:
crowds; that said defendants were informed The petition alleges that the defendants that Kraft had no knowledge of the mechanLeitzen are owners of a garage in the town ism of a Ford car, and in fact had never of Mapleton, where they keep automobiles driven one, yet, knowing these facts and for sale and hire, and hold themselves out the danger attending his use of said car, to the public as being engaged in that busi- they carelessly and negligently let the car ness; that in pursuit of such business and to said Kraft for the purposes above menoccupation they let for hire to the defend tioned. It is further alleged that plaintiff ant Kraft a Ford automobile, knowing at was a spectator, with others, at the carthe time that Kraft would himself run and nival in Ute, and in the exercise of reasonoperate the car, and was intending to drive able care on his part he was struck and seit to the town of Ute, where there was to verely injured by said Ford car being then be a large gathering of people attending a and there operated by said Kraft without carnival of sports. It further alleges that due skill and care, as he was being perthe Leitzens well knew that an automobile mitted to do through the negligence of the driven by an unskilled driver, or by one not defendants Leitzen. For the injury thus susfamiliar with a car of that pattern, was a 'tained he demands judgment for the recov
It is not apparent that a rule holding the, being used by another for his own purowner of an automobile liable for the neg. poses, on the theory that such a machine is ligence of the person to whom he intrusts a dangerous agency, and have in general althe car, at least a person generally em- lowed recovery only in cases where the cirployed or authorized to the car, cumstances were such as to bring the case although upon the particular occasion hc within the principle of respondeat 8uis using it for his own purposes, would in-perior. volve any essential injustice, or at least in- In accord with the foregoing statement, justice comparable to that which the in- in the following cases it was held that an jured person frequently suffers under the automobile is not a dangerous instrumentalpresent state of authorities. The owner ity to be classed with locomotives, feromay protect himself against the increased cious animals, etc., and that the owners of liability, either by refusing to lend the car such machines are not liable on the theory or by taking out insurance against liabil. of dangerous agency for injuries occurring ity from this source.
while they are being used by third persons It may be noted in this connection that for their own purposes, either with or withthe statute which in Daugherty v. Thomas, out the owners' consent: Hartley v. Miller, 45 L.R.A. (N.S.) 699, was held contrary to 165 Mich. 115, 33 L.R.A. (N.S.) 81, 130 N. the due process and equal protection clause W. 336, 1 N. C. C. A. 126 (car being used of the Constitution, purported to render the by borrower who was accompanied by
liable for injuries to strangers owner); Cunningham v. Castle, 127 App. though the car was being used without his Div. 580, 111 N. Y. Supp. 1057 (chauffeur knowledge or consent, and that the efusal, using for own pleasure with owner's in the subsequent cases cited in the note to sent); Linville v. Nissen, 162 N. C. 95, that case, to apply the statute so as to hold 77 S. E. 1096 (use by owner's son with the owner liable when he permitted the car former's consent); Fielder v. Davison, 139 to be taken, seems to have been due to the Ga. 509, 77 S. E. 618 (use by chauffeur inability to separate the valid from the in- without owner's consent); Tyler v. Stephan, valid portion of the statute.
Ky. —, 174 S. W. 790 (use of machine It seems contrary to public policy to per. by chauffeur without owner's consent); mit the owner of a car, when sued for an siater v. Advance Thresher Co. 97 Minn. injury inflicted by the negligence of his 305, 5 L.R.A. (N.S.) 598, 107 N. W. 133 chauffeur, to escape liability by merely (use for his own purposes of automobile showing that, while the car was on the high- furnished general manager in defendant's way with his consent, it was being used on business); Danforth v. Fisher, 75 N. H. the particular occasion for the pleasure of 111, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. the chauffeur, a financially irresponsible | 670, 71 Atl. 535 (use by chauffeur for his person, and for no purpose of the owner's own purposes without owner's consent); As suggested in a forcible opinion by Steffen v. McNaughton, 142 Wis. 49, 26 Spencer, J., in Ingraham v. Stockamore, 63 L.R.A. (N.S.) 382, 124 N. W. 1016, 19 Ann. Misc. 114, 118 N. Y. Supp. 399, infra, hold. Cas. 1227 (car being used by owner's chaufing the owner liable in such circumstances, feur without his knowledge or permission). the court is not limited to the rules appli- And this principle was adopted in Goodcable to horses, sailboats, and
man v. Wilson, 129 Tenn. 464, 51 L.R.A. launches; but “must make use of the rule (N.S.) 1116, 166 S. W. 752, involving the which meets the condition, and if there liability of one joint owner for an injury exists no rule applicable, then it must pro- occurring while the automobile was on the mulgate one that will be applicable.” way to the office of the other joint owner
The great weight of authority, however, in charge of a chauffeur hired by the joint has refused to hold the owner of an automobile liable for injuries sustained while it is The court in Tyler v. Stephan, supra,
ery of damages from all the defendants. The age and gave him some instruction or direcdefendants admit the keeping of a garage tion as to its use. Kraft then drove the car to by the Leitzens; that they let a Ford au- the vicinity of another garage or shop, tomobile to Kraft, and knew that he in- where he was further instructed as to the tended to use it in taking his family to the manner of operating a Ford. He then drove carnival at Ute. They admit, also, that to Ute, and while there, operating it in a plaintiff was injured by a wire, which was manner which a jury might properly find accidentally struck by said car while being to have been negligent, caused the injury to operated by Kraft, but they each and all plaintiff. Plaintiff having made this showdeny any negligence on their part with re- ing and rested his case, the court sustained spect to the use of said car or to the injury the motion of the defendants Leitzen for a suffered by plaintiff. The evidence, so far directed verdict in their favor. The plainas material to the appeal, tends to show tiff appeals. that Kraft was accustomed to operate au- 1. In argument for appellant counsel contomobiles, but had no previous experience tends that one who lets an automobile for with a Ford car. At the time he hired this hire is responsible for the proper skill and car one of the defendants got into the car care of the person to whom he intrusts it. with Kraft and backed the car out of the gar- In support of this position we are cited to said: “The rule of law applicable to the year-old son was using it, by reason of his care and protection of dangerous instru- ownership of the car or of the fact that he mentalities does not apply. That rule re- permitted his son to drive it whenever he quires the master to exercise a proper de wished. gree of care to guard, control, and protect And in Freibaum v. Brady, 143 App. Div. dangerous instrumentalities owned or oper- 220, 128 N. Y. Supp. 121, where the defendated by him, and to respond in damages for ant's car had been loaned, no direct referan injury incurred by reason of the im- ence was made to dangerous agency, but it proper use of such an instrumentality by was held that an owner of an automobile à servant, though not then engaged in the could not be held liable simply because he performance of his duties. The principle owned the car. on which liability is founded in such cases There was held to be no cause of action is the failure of the master properly to keep stated in Doran v. Thomsen, 74 N. J. L. 445, within his control such dangerous agencies. 66 Atl. 897, reversed on another ground in Manifestly, an automobile, which becomes 76 N. J. L. 754, 19 L.R.A. (N.S.) 335, 131 dangerous only when negligently operated, Am. St. Rep. 677, 71 Atl. 296, where it was cannot properly be placed in the same cate alleged that the defendant owned an autogory with locomotives, dynamite, and fero- mobile capable of being run at a speed of 60 cious animals. Consequently, the courts miles an hour on the highway, and that he have generally rejected this ground of lia- negligently consented and allowed it to be bility.
run along the highway at a speed of 60 And in Symington v. Sipes, 121 Md. 313, miles an hour by an inexperienced person, 47 L.R.A. (Ň.S.) 662, 88 Atl. 134, where an by reason of which it ran over and injured injury occurred while the owner's chauffeur the plaintiff, the court remarking that the was using the automobile for his own pleas-count was apparently based upon the erure without the owner's consent, the court roneous assumption that because the deremarked that it had been the contention fendant loaned his automobile to someone in a number of cases that an automobile over whom he had no direction or control was a dangerous agency, and that a master at the time of the accident, he should be who trusts such a machine to his servant held liable for the mere loaning, but that for use on the highway is chargeable for in- no liability attached to him by reason of juries resulting from the servant's negli- this fact, unless it was being used in the gence, but that this theory had been uni- owner's business at the time of the accident. versally rejected.
In another case it was held that, although And it was stated in McNeal v. McKain, a chauffeur employed by the owner of an 33 Okla. 449, 41 L.R.A. (N.S.) 775, 126 automobile is not a competent and careful Pac. 742, where an automobile was being operator of such machines, the owner will used by the owner's son for his own pleas- not be liable on the theory that an autoure with the owner's consent, that an automobile is a dangerous agency, for an injury mobile is not a dangerous agency, and that resulting from the chauffeur's negligence the rules that apply at common law as to while he is using his employer's car, which servants in charge of vehicles belonging to he has taken from the garage where it is the master are applicable to chauffeurs or kept without the owner's knowledge or perpersons in charge of motor cars of the mission for his own purposes.
Jones v. master.
Hoge, 47 Wash. 663, 14 L.R.A. (N.S.) 216, While the subject of dangerous instru- 125 Am. St. Rep. 915, 92 Pac. 433. mentality was not mentioned in Maher v. And in Lewis v. Amorous, 3 Ga. App. 50, Benedict, 123 App. Div. 579, 108 N. Y. 59 S. E. 338, it was held that an automoSupp. 228, it was held that no liability at bile was not a dangerous agency, and that tached to the owner of an automobile for the owner of such a machine, or the proan injury which occurred while his twenty-prietors of a garage where it was kept, were
certain English cases where the owner of reasonably and properly held to respond a cab is held liable for injuries resulting in damages. But the owner of a livery from the negligence of the driver. But such stable or garage making a business of let
are parallel neither in fact nor in ting teams or carriages or motor cars to principle with the one now before us. The customers who propose and expect to do proprietor of a cab or hack stand lets his their own driving has never been held to carriages supplied with drivers of his own any such rule of responsibility by any court, selection and in his own employment. While so far as the precedents have been called to a certain extent the driver under such to our attention, and we think there is no circumstances becomes the servant of the general rule or principle necessitating such hirer, he does not cease to be the servant conclusion. Cases may be imagined, perand representative of the cab owner so far | haps, where an owner recklessly lets his as the immediate care and management of spirited team or his automobile to an imthe carriage and its motive power is con- mature child, or to a person who is intoxi. cerned, and if, by his careless or reckless cated or otherwise manifestly incompetent driving, a collision occurs upon the street, to manage or control it, with the natural and a third person is thereby injured with result of a collision upon the public street out fault on his own part, the owner is very and consequent injury to others. not liable for an accident resulting from agencies as dynamite or savage animals. its negligent operation by a conscious per. They are not dangerous per se. Prudently son who had reached the age of discretion driven, they are safer than the horse-drawn who took the car from the garage. With vehicle. But the special training needed reference to leaving the machine where an. for their operation, though simple and other could obtain possession of it, the court easily acquired, as well as the temptation said: "While it is alleged that the defend to speed, which they constantly present, ants left the automobile where opportunity should impose upon owners a special degree to take and operate it was given to a per- of care in the selection of experienced and son inexperienced in the operation of the judgmatic drivers for them. No doubt, machine, yet this is very different from liability will arise where the owner inalleging, as is necessary even under the trusts machine of such dangerous theory of the turntable and other at potentialities to the hands of an inexperitractive-nuisance cases, that the defendant enced or incompetent person, whether child left the automobile where opportunity to or servant. In the case of a mere permisoperate it was given to a person whose sive use, the liability of the owner would mental incapacity and indiscretion were rest, not alone upon the fact of ownership, such that he would be attracted to inter- but upon the combined negligence of the fere with it, and would not know better owner and the driver, negligence of the one than to trespass upon it. Even if we could in intrusting the machine to infor a moment concede (as in all common competent driver, of the other in its operasense we cannot) that it would be negligent tion.” for a person to leave an automobile in a In Daily v. Maxwell, 152 Mo. App. 415, shop or garage without chaining it down or 133 S. W. 351, where a recovery was sought locking it in, still when the injury which against the owner of an automobile for an actually happens is directly resultant from injury inflicted while it was being used by the immediate negligence of a conscious, his son with the owner's consent, the eviefficient, and responsible actor, with whose dence which, among other things, showed conduct the former is in nowise bound by that the operator was but sixteen years old, any privity, the leaving of the machine un- was held to support a charge that the ownguarded is not the proximate cause of the er of the machine negligently suffered it injury.”
to be operated by an incompetent driver, In some cases, as observed in the intro- and thereby converted it into a dangerous ductory statement, the view has been taken instrumentality. The court said: "No one that an automobile, although not a danger- can deny that an automobile in the hands ous instrumentality per se, has such propen- of a careless and incompetent driver would sities for doing damage when carelessly op- be a dangerous machine to turn loose on erated that the owner may become liable in busy streets, and would constitute a menace case he intrusts it to an incompetent person. to travelers. The owner of a car must exer
Thus, in Parker v. Wilson, 179 Ala. 361, cise reasonable care in the selection of a 43 L.R.A.(N.S.) 87, 60 So. 150, it was held chauffeur, and, failing in this, will be held that the training needed for the operation liable for the consequences of his own negliof automobiles should impose upon owners gence in sending out his car in charge of a special degree of care in the selection of an incompetent operator. Boys are very drivers, but that no liability attaches to the apt at learning how to run vehicles of all owner for an injury which occurs while his sorts--more apt than men—and the eviautomobile is being operated by another ondence before us is all to the effect that the ground of dangerous agency, where the Ernest was a bright boy and careful, too, one to whom it was intrusted was competent. for one of his years. But he was only a The court said: “Automobiles are not to boy, and the jury were entitled to say, from be classed with such highly dangerous 'the mere fact that he was only sixteen years
well be that under such circumstances the for hire, but because he knew the incomowner would be held liable in damages, not petency of this particular driver and the because the hirer is his servant, or be imminent peril to which he thereby exposed cause as owner he is required to vouch to others who were in the lawful use of the the public for the competency of all persons streets, and as a person of ordinary pru. to whom he may let his teams or his cars dence should have refrained from so doing. old, that he lacked judgment, discretion, jury as a consequence of permitting the and care to be expected of a mature person, child to drive the car, and that the defendand which was essential to the proper and ant's negligence made it possible for the careful operation of a vehicle so powerful child to cause the injury, and by another as an automobile.”
instruction to the effect that if the owner It was held in this case, however, to permitted the boy to drive the car, and, be reversible error to instruct that an because of the latter's inexperience and automobile “when upon the public want of fitness and ability to run such a highway is considered a dangerous ap- car, he should have anticipated that danger pliance as a matter of law," the court and injury were likely to result to others, remarking: “When carefully handled, it and if the operator failed to exercise ordiis not dangerous either to its pas- nary care to prevent injury to the plainsengers or to other persons using the tiff, and the owner's acts in permitting him public highways who are themselves in the to have and run the car were negligent, and exercise of reasonable care. Its great ca- the negligence of both defendants was the pacity and power endow it with dangerous proximate cause of the plaintiff's injury,possibilities, but human agency-wanton or the owner would be liable. Ibid. negligent agency-must call them into play. The general holding was not followed It would seem paradoxical to say in one in Ingraham v. Stockamore, 63 Misc. 114, breath that an automobile is a lawful vehi- 118 N. Y. Supp. 399. It was there held that cle, and in the next that it is dangerous an automobile is a dangerous machine, per se, as dynamite or a locomotive or a and, while it was recognized that the owner mad bull are dangerous. If it belonged to would not be liable for an injury resulting the latter class, the rules of the common while it was being used by another withlaw would not permit its presence on public out the owner's consent, yet it was held highways for general use. So far as we are that the owner was liable for an injury advised, the authorities are all one way on which occurred while his car was being this question."
used by his chauffeur for the latter's In Lynde v. Browning, 2 Tenn. C. C. A. pleasure with his consent. The court said: 262, the court stated that, although auto- "An automobile being a dangerous machine, mobiles were not dangerous agencies in such its owner should be held responsible for the a sense as to make the owners absolutely manner in which it is used; and his liaresponsible for all damage occasioned by bility should extend to its use by anyone collision in whosever hands they might be, with his consent. He may not deliver it yet in view of their propensities the most over to anyone he pleases and not be restringent regulations should be applied, and sponsible for the consequences. The learned that a very high degree of responsibility justice, in the prevailing opinion in Cun. rests upon owners, both as to their opera- ningham v. Castle, 127 App. Div. 580, 111 tion and in the selection of parties to whom N. Y. Supp. 1057, says: 'It may be that they intrust them. The owner in this case it would be wise and in the public interests was held liable on the ground of agency, that responsibility for an accident caused for an injury inflicted while his car was by an automobile should be fixed to the being operated by his son for the latter's owner thereof irrespective of the person pleasure with the father's consent.
driving it, but the law does not so provide.' In Allen v. Bland, Tex. Civ. App. - I do not think so stringent a rule is neces168 S. W. 35, where an action was brought sary. In cases where an automobile is used against the owner of a car which was being without the consent of its owner, the latter used with his consent by his son when an should not be responsible; but in those cases accident occurred, the court held that an where an automobile is operated on the automobile is not a dangerous appliance as highway with the consent of the owner, he a matter of law, but stated that it was not should be responsible." willing to hold that a powerful heavy ma- It has been held that the owner of an chine in the hands of an 85-pound boy not electric truck cannot be held liable on the yet in his teens, speeding along the streets theory of dangerous agency, for damage of a populous town, might not become a done by the truck, which was started by menace to the lives of persons using the boys while it was standing unattended for streets.
a short time with brakes set and everything It was held in this case that the issue of done that could be short of dismantling it, negligence was presented in as favorable a to render it inert, since the rules of law light as the defendants were entitled to applicable to dangerous instrumentalities do have it, by an instruction in effect that, in not apply. Vincent v. Crandall & G. Co. 131 order to render the parent liable for the App. Div. 200, 115 N. Y. Supp. 600. And to son's negligence, it must appear that he the same effect is Berman v. Schultz, 84 N. might reasonably have anticipated the in- | Y. Supp. 292.
J. T. W.