
    Williamson, Appellee, v. Eclipse Motor Lines, Inc., Appellant.
    (No. 30232
    Decided July 25, 1945.)
    
      
      Messrs. Kinsey <& Allebaugh and Mr. John H. White, for appellee.
    
      Messrs. Burt, Carson, Shadrach & Miller, for appellant.-
   Matthias, J.

The claim of the plaintiff against the defendant is based entirely upon the charge of negligence of the latter in placing its motor vehicle in the care, custody and control of an incompetent driver whose negligent operation of such vehicle on a public highway in this state caused damage to the plaintiff’s automobile.

The relationship of employer and employee is therefore not necessarily involved, for the action does not rest upon- the doctrine of respondeat superior. Such relationship may in some cases have a bearing upon the issue of permission to operate a motor vehicle. The basis of the liability sought to be enforced is the negligent entrustment of a potentially dangerous instrumentality to an inexperienced or incompetent person. The doctrine of entrustment is stated in 4 Berry on Automobiles (7 Ed.), 710, Section 4.406, as follows:

“Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine. ’ ’

Although when permission to operate a motor vehicle is granted, the purpose for which it is to be used, or the purpose for which it is in fact used, by the person to whom it is entrusted is not important or controlling in the determination of the issue of liability, we may well observe some of the facts relative thereto, which are uncontroverted in this case. The employee, Massey, at the time of the accident and consequent injury, was not acting for the defendant, nor was his use of the motor vehicle within the scope of his employment. Not only without the authority, but in apparent disregard of the instructions, of the defendant, Massey disengaged the tractor from the trailer and undertook to take his father from the home of the former in Hollidays Cove, West Virginia, to the home of the latter near Dillonville, Ohio. Both driver and passenger were intoxicated, and it was on this trip that the tractor crashed into the plaintiff’s automobile.

It is now well settled that liability may arise where an owner entrusts his motor vehicle, with permission to operate the same, to a person so lacking in competency and skill as to convert the vehicle into a dangerous instrumentality. The general rule applicable in cases of this character is well stated in 4 Berry on Automobiles (7 Ed.), 711, Section 4.406, as follows:

“An automobile is a machine that is capable of doing great damage if not carefully handled; and for this reason the owner must use care in allowing others to assume control over it. * * * If the person permitted to operate the car is known to be incompetent and incapable of properly running it * * * the owner will be held accountable for the damage done, because his negligence in entrusting the car to an incompetent person is deemed to be the proximate cause of the damage.”

It is quite generally held that the liability in such cases arises from the combined negligence of the owner and the driver; of the former in entrusting the machine to an incompetent driver, and of the driver in its operation. The liability, therefore, does not arise out of the relationship of the parties, but out of the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience or recklessness is known or should have been known by the owner. Elliott v. Harding, 107 Ohio St., 501, 140 N. E., 338, 36 A. L. R., 1128; Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692. Mere delivery of a motor vehicle to another without permission to operate' it does not give rise to liability of the owner for the wrongful and negligent 'operation of such motor vehicle.

The sole question presented to this court is whether, upon the motion made by counsel for the defendant at the close of all the evidence, a verdict in favor of the defendant should have been directed by the trial court, which calls for an examination of the record to ascertain whether evidence was adduced showing negligence on the part of the defendant in entrusting its motor vehicle to Massey, which constituted a proximate cause of the damage sustained by the plaintiff.

Before taking up a full examination and discussion of the facts disclosed by the record, let us ascertain the measure of duty and the nature of responsibility of the owner relative to the entrnstment of his motor vehicle to another to operate. We have seen that the liability involved does not arise out of the relationship of the parties, whether of family, business or otherwise, but results from the act of entrustment of a motor vehicle to an incompetent or inexperienced operator. Negligence of the owner is the basis of the liability. The rule seems firmly established that a motor vehicle is not an inherently dangerous instrumentality, and therefore the owner is not generally liable for its negligent use by another to whom it is intrusted to be used, or when it is in fact used for the other’s purpose. Liability may arise, however, if such owner permits the operation of his motor vehicle by one whom he knows, or should have known, to be so incompetent, inexperienced or so reckless as to render the motor vehicle a dangerous instrumentality when operated by such person.

The authorities are quite uniform to the effect that to give rise to-such liability it is essential that it be shown that the owner had knowledge of the driver’s incompetency or inexperience or his reckless tendency as an operator of a motor vehicle, or that such owner in the exercise of ordinary care should have known thereof from facts and circumstances with which he was acquainted. See 5 Rlashfield’s Cyclopedia of Automobile Law and Practice (Perm. Eel.), 63, Section 2927; 4 Berry on Automobiles (7 Ed.), 710 et seq.; Guedon v. Rooney, 160 Ore., 621, 87 P. (2d), 209, 120 A. L. R., 1298, and numerous cases there cited.

In the cases involving the entrustment of a motor vehicle to an intoxicated driver, or one whose drinking propensities are known by the owner, it is generally held that the owner assumes the risk of recklessness of such driver, even though the driver was sober when the motor vehicle was placed in his possession, for the reason that the owner is put on notice of what is likely to occur if one addicted to drinking drives a motor vehicle.

However, a less severe rule is applied in some cases. Fisher v. Fletcher, 191 Ind., 529, 133 N. E., 834, 22 A. L. R., 1392.

Where an owner had actual knowledge that his son’s license had been revoked for driving while intoxicated and had not been returned, liability for the son’s subsequent negligent operation resulting in damage to another was held to have been thereby assumed. Gordon v. Bedard, 265 Mass., 408, 164 N. E., 374.

Incompetence or recklessness of a motor vehicle operator may, of course, be shown by evidence of previous instances of negligent or reckless conduct in the operation of a motor vehicle. Clark v. Stewart, 126 Ohio St., 263, 185 N. E., 71, and cases there cited. .

Let us now return to a consideration of the facts presented in the record before us. The claim of counsel for the plaintiff, and the theory upon which it was presented in the trial court, was that the defendant company knew or should have known that Charles Massey was an incompetent driver because he was addicted to intoxicants, or because he did not have a license to drive in the state of Ohio. It must be borne in mind that the defendant company and Massey were residents of the state of West Yirginia, and it was in the office of the company in Follansbee, West Yirginia, that the contract of employment was made, and it was there, also, that the tractor-trailer was delivered to Massey and was to be kept at his home in Hollidays Cove and used by him in the service of the defendant company only as thereafter directed by thé company. Although the record does disclose that the defendant operated trucks in Ohio, Pennsylvania and Indiana, as well as in West Yirginia, it does not appear from the record that Massey, upon instruction of the defendant company or otherwise, had, prior to the time of the accident in question, operated any motor vehicle, belonging to the defendant company, in the .state of Ohio. The record, therefore, nowhere discloses that any occasion or necessity had arisen for Massey to have a license to operate a motor vehicle for the defendant company within the state of Ohio. Although the record shows an inquiry made of Massey by the defendant whether he had a driver’s license, and an affirmative answer was given, nowhere in the record does it appear whether the reference was to a license in Ohio, West Virginia or elsewhere.

There is no evidence in the record that the managing officer of the defendant company, who employed Massey as a driver on April 9,1943, or anyone connected with the company, knew, at the time of Massey’s employment, or had any information, at any time prior to the accident involved herein, that Massey ever became intoxicated, that he drank intoxicating liquor at all, or that his driver’s license had theretofore been revoked anywhere or for any cause. The record shows, on the contrary, that the employing officer of the company ascertained that Massey had been a driver of trucks for a period of 8 or 9 years; and also shows that prior to employing him the manager .of the defendant company made inquiry of two former employers, one of whom commended Massey as a “very good driver and very good employee;” and the other reported that “he was average.” Although it appears no specific inquiry was .made as to intoxication, neither of his former employers, knowing the purpose of the inquiry, reported any incident of intoxication or other delinquency upon the part of Massey.

To relieve itself from liability for the misconduct of Massey after delivery of the tractor-trailer to him, or after information of previous misconduct, the defendant would be required to prevent Massey’s subsequent operation of its motor vehicle. However, the record discloses that during the two weeks of Massey’s employment by the defendant he had performed his duties “exceptionally well.” There is no evidence of any information from any source prior to the accident involved herein relative to Massey’s being under the influence of intoxicating liquor or that he drank intoxicating liquor, or any information indicating that he was for any reason an incompetent driver.

It is our conclusion that the evidence disclosed by the record was not such as to warrant submission of the case to the jury, and that the motion for a directed verdict made at the close of all the evidence should have been sustained. The overruling thereof by the trial court was error which was not waived by subsequent acquiescence in the charge of the court by counsel for the defendant, nor by his failure to file a motion for judgment notwithstanding the verdict. It follows, therefore, that the judgment of the Court of Appeals should be and is hereby reversed and final judgment rendered for the appellant.

Judgment reversed.

Weygandt, C. J., Bell and Hart, JJ., concur.

Zimmerman, Williams and Turner, JJ., dissent.

Zimmerman, J.,

dissenting. One Massey, driving a motor vehicle in Ohio belonging to the. defendant, Eclipse Motor Lines, Inc., (an interstate motor carrier of property operating in West Virginia, Pennsylvania, Ohio, Indiana and parts of New York), and placed in his possession by the defendant, ran into the plaintiff’s automobile and damaged it. The present action arose out of such incident and is based on the claim that defendant had wrongfully and negligently entrusted its vehicle to an unfit and intemperate person whose license to drive in Ohio had theretofore been revoked for “drunken driving.” A judgment on a verdict for plaintiff was affirmed by the Court of Appeals.

At the trial, before the introduction of testimony, it was stipulated and agreed between opposing counsel that the damage to plaintiff’s automobile amounted to $875; that Massey was intoxicated at the time of the collision; and that the injury to plaintiff’s car was due solely to his, Massey’s, negligent conduct.

The rule is now firmly established in many jurisdictions that where the owner of a motor vehicle entrusts it to a person whom the owner knows to be reckless, intemperate or incompetent, or where upon reasonable inquiry the owner could or should have so known, such owner is responsible for an injury which was a proximate result of the entrustment. Liability of the owner is predicated upon the combined negligence of the owner and the one to whom he has entrusted his vehicle ■ — negligence of the owner in entrusting the vehicle to an unfit person and negligence of that person in the operation of the vehicle. Priestly v. Skourup, 142 Kan., 127, 45 P. (2d), 852, 100 A. L. R., 916; Owensboro Undertaking & Livery Assn. v. Henderson, 273 Ky., 112, 115 S. W. (2d), 563; Rounds, Admr., v. Phillips, 168 Md., 120, 177 A., 174; Levy v. McMullen, 169 Miss., 659, 152 So., 899; Guedon v. Rooney, 160 Ore., 621, 635, 87 P. (2d), 209, 215, 120 A. L. R., 1298, 1306; 5 American Jurisprudence, 696, Section 355; 3-4 Huddy’s Cyclopedia of Automobile Law (9 Ed.), 78, Section 42 et seq.\ 2 Restatement of Torts, 1058, Section 390.

This principle has been recognized and applied in Ohio. Elliott v. Harding, 107 Ohio St., 501, 140 N. E., 338, 36 A. L. R., 1128; Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692.

And the owner is not absolved from liability because the irresponsible person to whom he has confided his motor vehicle disobeys instructions as to its management and use. Levy v. McMullen, supra; V. L. Nicholson Const. Co. v. Lane, 177 Tenn., 440, 150 S. W. (2d), 1069.

Within the rules stated, was the evidence introduced on the trial of this case of such a character as to present a jury question?

It appears from the bill of exceptions that Massey was engaged by the defendant as a motor-truck driver on April 9, 1943. The defendant placed one of its motor vehicles in his possession, permitting him to keep it at his home in West Virginia. About two weeks after he entered the defendant’s service, Massey, while in an intoxicated condition and on a “frolic of his own,” and accompanied by his intoxicated father, according to the briefs of both plaintiff and defendant, drove the defendant’s vehicle against plaintiff’s automobile.

It further appears that on May 19, 1942, in the Municipal Court of Steubenville, Ohio, Massey pleaded guilty to a charge of operating a motor vehicle while under the -influence of alcohol. As a part of his sentence, Massey’s license to drive was revoked for three years, and the license, with a notation of the revocation and the reason therefor, was transmitted to the Registrar of Motor Vehicles of the state of Ohio, where such information became a matter of public record, readily available to the defendant.

One of the officers of the defendant testified that when Massey was hired he said he had a license to drive but that no further inquiry was made to ascertain the truthfulness of the statement. Since defendant carried on a part of its business in the state *of Ohio, the query naturally arises as to why Massey was not at least asked to exhibit his Ohio driving license. This could easily have led to the discovery of why he had none. Surely the duty rests on a public carrier to exercise reasonable diligence in choosing employees who are fit and qualified for the work they are to perform. See 13 Corpus Juris Secundum, 1272, Section 688.

Upon the evidence, a minority of this court entertains the view that it was for the jury to say whether the defendant had wrongfully and negligently entrusted its motor vehicle to an unfit custodian and whether such entrustment was a proximate cause of the collision and resultant damage.

The point is made in the majority opinion that Massey was not engaged on business of the defendant at the time of the collision, and that he was driving the vehicle for his own purposes, contrary to the defendant’s instructions. However, cursory inquiry by the defendant would have divulged that Massey had pleaded guilty to a charge of “drunken driving,” and as a result thereof had had his license to drive revoked for three years. Possessing that information, the defendant would have been warned that Massey was an improper person to be entrusted with a motor vehicle, and that by placing a vehicle in his keeping it was affording him the opportunity to repeat the offense of driving while under the influence of alcohol, with its attendant dangers.

It is commonly known that many individuals, after imbibing too freely of intoxicating beverages, will drive about in a motor vehicle if any is available, regardless of orders; that they will seek the company of other convivial souls and invite them to ride, as did Massey; and that while driving in a drunken condition such persons are a menace to all who come within range of their activities.

Counsel for plaintiff place reliance on Sections 6296-27, 6296-28, General Code, and other cognate sections, relating to the employment of an unlicensed person to operate a motor vehicle and prohibiting the owner of a motor vehicle from permitting it to be driven by one who has no legal right to do so. The trial court charged on those statutes and we think properly.

Although the violation of statutes such as those cited would not in and of itself make the owner liable for injury occasioned by an unlicensed but otherwise qualified person in operating a motor vehicle entrusted to him (Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St., 607, 9 N. E. [2d], 671, 111 A. L. R., 954; 5 American Jurisprudence, 588, Section 146); nevertheless where the owner knew, or in the exercise of ordinary care could or should have known, that the unlicensed person was unfit and disqualified to have charge of the vehicle, and injury occurs to another by that person’s negligent use of the instrumentality committed to him, the violation of the statutes by the owner would be a cause directly contributing to the injury and would constitute negligence on his part.

For the reasons given we are of the opinion that the judgment of the Court of Appeals should be affirmed.

Williams and Turner, JJ., concur in the foregoing dissenting opinion.  