
    Méndez, Plaintiff and Appellee, v. Baldassari, Defendant and Appellant.
    Appeal from the District Court of Mayagiiez in an Action for Damages.
    No. 2218.
    Decided June 14, 1920.
    Negligence — Damages—Automobile—Driver.—The fact that the owner of a private automobile employs a “driver” instead of a “chauffeur” to operate his vehicle for pay does not make him liable for the negligence of the driver if the owner was not in the vehicle at the time.
    The facts are stated in the opinion.
    
      Mr. J. Sabater for the appellant.-
    
      Messrs. Benet and Sou front for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the court.

The appellant is the owner of a private automobile which he usually drives himself, but sometimes he employs for driving it a person with an operator’s license and pays him for such occasional services. On an occasion when the appellant was not in his automobile and it was being driven by the said operator a collision occurred, through the negligence of the operator, with another automobile belonging to the appellee and judgment was given against the appellant for the damages done to the appellee’s automobile, the trial court holding that he was guilty of negligence per se in allowing his automobile to be driven by a person who had not a chauffetw’s license. The appellant contends that the court erred in. so holding, and on that ground prays that the judgment he reversed.

We have examined carefully the Motor "Vehicles Act (Act No. 75 of April 13, 1916) and find nothing therein -which makes it the duty of the owner of an automobile necessarily to employ a chauffeur for driving his vehicle, nor anything prohibiting his employing an operator. As we said in Arenas et al. v. Commissioner of the Interior, 26 P. R. R. 675, any person who has a license as chauffeur or operator may drive a motor vehicle, for the law exacts the same personal qualifications for obtaining a license either as a chauffeur or as an operator and the fees to be paid into the public treasury are the same. The only difference we find in the law between an operator and a chauffeur is that the latter receives pay for his services, for the definition of chauffeur in section 1 is “ any person who is paid for operating a motor vehicle,” while an operator is “any person who operates a motor vehicle, other than a chauffeur.” The operator as well as the chauffeur is authorized to drive motor vehicles, but the name of chauffeur is applied to a person who is paid for rendering such service. Therefore the owner of an automobile may employ for driving it either an operator or a chauffeur, for both are authorized by law to drive motor vehicles. This conclusion is substantiated by section 17 of the act, which, provides that the owner of any motor vehicle shall be responsible for damage caused by the negligence of the operator or chauffeur while such owner is in the vehicle, imposing liability upon the owner of a motor vehicle for damages caused by the negligence of the operator or chauffeur only when an accident occurs when the owner is in the vehicle. In this case the appellant is not responsible because he was not in his automobile when the accident occurred, and this conclusion is supported by the holding of this court, that the owner of a motor vehicle not devoted to a business or enterprise is not liable. for tbe damage caused by tbe negligence of bis chauffeur, in. tbe cases of Vélez v. Llavina, 18 P. R. R. 634; Alicea v. Aboy, 23 P. R. R. 100, and Truyol & Co. v. West India Oil Company, 26 P. R. R. 321.

It is true that subdivision (h) of section 5 of tbe act provides that “no person shall allow a motor vehicle owned by him or under bis control to be operated by a person not legally authorized to do so or in violation of tbe provisions of this Act, and no person shall hire a chauffeur to drive bis automobile without ascertaining that be .has a proper license,” but that provision can not serve as a basis for a judgment against tbe appellant in this case,/because be em-, ployed for driving bis automobile, a motor vehicle, a person who was lawfully authorized to drive such vehicles by being licensed as an operator, and we can not say that tbe appellant, violated tbe law in any-other respect. As regards tbe last part of tbe paragraph quoted, it is true that it provides that tbe owner of a motor vehicle shall not hire a chauffeur to drive it without ascertaining that be has a proper license, but, as we have said, tbe qualifications required by law for obtaining a license as operator or chauffeur being tbe same, we do not believe that it means that when a person is paid for driving a motor vehicle he must have a chauffeur’s license necessarily and that an operator can not be so employed when both are authorized to drive motor vehicles.

Por tbe foregoing reasons tbe judgment appealed from must, be

Reversed.

Chief Justice Hernández and Justices del Toro and Hutchison concurred.

Mr. Justice Wolf took no part in tbe deFfion of this case.  