Opinion
No. 32074
Decided July 26, 1950.
Negligence — Motor vehicles — Entrustment to nonlicensed driver not negligence as matter of law — Section 6296-28, General Code — Facts essential to establish negligence of entrusting owner — Owner's knowledge of incompetency or reckless tendency of driver.
1. The entrustment of an automobile by its owner to a person who does not have a driver's license, in violation of the provision of Section 6296-28, General Code, that "no person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven by any person who has no legal right to do so," does not of itself constitute negligence as a matter of law.
2. To establish negligence of the owner of a motor vehicle in such a case, it is essential that it be shown by competent evidence that the owner of the automobile had knowledge of the driver's incompetence, inexperience or reckless tendency as an operator, or that the owner, in the exercise of ordinary care, should have known thereof from facts and circumstances with which he was acquainted. ( Williamson v. Eclipse Motor Lines, Inc., 145 Ohio St. 467, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga county.
This action originated in the Municipal Court of Cleveland. The Mt. Nebo Baptist Church, hereinafter referred to as the plaintiff, brought an action against the Cleveland Crafts Company, hereinafter referred to as the company, and Jay C. Arrington, its employee, hereinafter referred to as Arrington.
The averments of the amended petition are in substance as follows:
The company permitted Arrington to operate its automobile for the purpose of taking parcel post packages to the Cleveland post office. On the occasion involved here Arrington operated the automobile negligently causing it to run into plaintiff's church building thereby damaging it in the respects therein described. Arrington was not licensed as an automobile operator or chauffeur and was incompetent to operate an automobile, which fact was known, or should have been known, by the company, and the negligence of the company in the entrustment of the automobile to Arrington and the negligence of Arrington in the operation "combine [d] as the proximate cause of the damages to this plaintiff.'
The company by answer admits that Arrington was operating the automobile without a driver's license but denies the negligence of either the company or Arrington as alleged. The company avers that on the date set forth Arrington was instructed by Werner Magnus, an officer of the company, to drive his (Magnus') automobile to take certain packages to the post office and to return directly to the company's place of business; that at the time and place of the accident in question Arrington was not acting on behalf of the company in that he was not in the course or scope of his employment for the company; that without the knowledge, consent or permission, and in disobedience of the instructions of the company, he drove the automobile to his home and was thus engaged in an affair of his own; and that it was while returning therefrom to the company's place of business that "the said automobile was caused to leave the highway and come in contact with said church."
Arrington by separate answer admits that he did not have a driver's license but denies generally the averments of the petition, specifically denying, however, that at the time of the accident he was operating the automobile on the business of the company. In the course of the trial, at the close of plaintiff's evidence and upon the motion of counsel for the defendants, the court directed a verdict for the company but overruled the motion as to Arrington, against whom a verdict was subsequently returned by the jury and judgment rendered thereon.
The Court of Appeals reversed the judgment as to the company and affirmed the judgment against Arrington.
The cause is in this court following the allowance of a motion to certify the record.
Mr. C.L. Sharpe, for appellee.
Messrs. Squire, Sanders Dempsey and Mr. R.C. Green, for appellant.
The record clearly discloses that at the time of the accident, upon which the suit of the plaintiff is predicated, Arrington was entirely outside and beyond the scope of his employment. The only possible basis for the claim of negligent entrustment of the automobile by the company to Arrington is that he was an incompetent driver solely by reason of the fact that at the time of the accident he did not have a driver's license.
Section 6296-4, General Code, provides as follows:
"No person except those expressly exempted under Sections 5, 6 and 8 [Sections 6296-5, 6296-6 and 6296-8, General Code] of this act, shall drive any motor vehicle upon a highway in this state unless such person, upon application, has been licensed as an operator or chauffeur by the registrar under the provisions of this act."
Both parties to this appeal place reliance on the provisions of Section 6296-28, General Code, for the reason that the pleadings admit Arrington was not at the time of the accident a licensed driver. This section provides as follows:
"No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven by any person who has no legal right to do so or in violation of any of the provisions of this act."
It is to be observed that, reduced to its simplest terms, the question of law presented in this case is whether the mere entrustment of his automobile by an owner to an unlicensed driver constitutes negligence as a matter of law.
The record discloses no evidence whatever that at the time of the entrustment of the automobile to Arrington there was any knowledge on the part of the company or any representative of the company that Arrington did not have a driver's license or that the company or any representative of the company had information that Arrington was an incompetent driver or of any fact that indicated incompetency of Arrington by reason of any physical or mental defect, habits of intoxication or any other condition or circumstance which would render him a dangerous, reckless or, in any wise, even an unsafe driver. Indeed the record discloses no evidence of any inability or lack of qualification of Arrington to secure a driver's license, existing at the time of the entrustment. It is disclosed only that at the time of the entrustment Arrington did not have a driver's license. Although the possession of a driver's license, regularly issued, might indicate his competency, the lack of such license would in itself be no evidence that he was not a capable, skilled and safe driver.
If an unlicensed driver is entrusted with an automobile and operates it with that degree of skill required of a licensed driver, negligence in such entrustment cannot properly be predicated upon the mere fact of the lack of a driver's license. Surely no one would contend that the mere want of a driver's license, by one who had long had such a license but which had lapsed or expired at the time of the entrustment and at the time of an accident consequent thereon, would constitute any evidence of incompetency of the driver.
The general rule applicable is stated in 4 Ohio Jurisprudence, 764, Section 154, as follows:
"By the weight of authority in the courts generally it is held that the fact that a motor vehicle, or the driver of such a vehicle, was not licensed, as required by statute, will not charge the owner or operator with liability for injury or damage caused by its operation on the highway, where the failure to obtain a license has no causal connection with the injury or damage."
The rule is restated in 137 A.L.R., 476, as follows:
"It seems that the mere fact that the driving of an automobile without a license is forbidden by law is not enough, per se, to render liable for an injurious consequence one who permits an unlicensed person to operate his car. This is in line with the general rule."
The doctrine of negligent entrustment as applied to automobiles was first approved by this court in the case of Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, the first paragraph of the syllabus of which reads as follows:
"While an automobile is not a dangerous instrument per se, it may become such if operated by one who is unskilled in its use; and, where the owner intrusts such a machine to an inexperienced or incompetent person, liability for damages may arise."
The rule so announced has been followed in the cases of Clark v. Stewart, 126 Ohio St. 263, 185 N.E. 71; Wery v. Seff, 136 Ohio St. 307, 25 N.E.2d 692; Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R., 954; and Williamson v. Eclipse Motor Lines, Inc., 145 Ohio St. 467, 62 N.E.2d 339, 168 A.L.R., 1356.
The question of the legal effect of the entrustment by the owner of an automobile to an unlicensed driver was presented and considered in the Williamson case, supra. As disclosed by the record in that case, the plaintiff urged and the trial court charged that the entrustment of the truck by the defendant to an unlicensed driver, in violation of Section 6296-28, General Code, constituted negligence per se. This court held otherwise, it being stated in the opinion that "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 [by defendant] for a directed verdict made at the close of all the evidence should have been sustained."
The general rule applicable is that where the violation of a statute, enacted for the protection of the health and safety of the public, gives rise to liability for consequent damages, it is required that it be shown not only that there was a violation of such statute but also that such violation was a proximate cause of the injury claimed to have been sustained.
Applying this general rule to Section 6296-28, General Code, it follows that the absence of proof that the failure to have a license, which was the only basis of the alleged violation in this case, was a proximate cause of the injury precludes a recovery of damages from the owner of the automobile.
The judgment of the Court of Appeals should be, and is, reversed, and the judgment of the Municipal Court is affirmed.
Judgment reversed.
WEYGANDT, C.J., HART and STEWART, JJ., concur.
ZIMMERMAN and TAFT, JJ., concur in the judgment.
TURNER, J., dissents.
I am of the opinion that the entrustment of an automobile by its owner to a person who does not have a driver's license is negligence per se. Wery v. Seff, 136 Ohio St. 307, 25 N.E.2d 692, paragraph two of the syllabus. However, I agree with the judgment rendered, for the following reasons:
1. To establish liability of the owner of an automobile for injuries proximately caused by the negligence of an unlicensed driver, to whom the automobile has been entrusted by the owner, it is essential to establish a proximate causal relationship between such injuries and the entrustment of the automobile to such driver. Gulla v. Straus, post, 193, paragraph two of the syllabus; Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St. 607, 9 N.E.2d 671, 111 A.L.R., 954, paragraph three of the syllabus. See Wery v. Seff, supra, 310.
2. Ordinarily, where, as in the instant case, there has been no substantial deviation beyond the scope of the permission given to operate the automobile, such proximate causal relationship may be established by proof that the unlicensed driver was an inexperienced or incompetent person. See Wery v. Seff, supra, 310, Gulla v. Straus, supra, and Clark v. Stewart, 126 Ohio St. 263, 185 N.E. 71, paragraph three of the syllabus.
3. As the majority opinion clearly indicates, the mere facts, that such driver had no driver's license and that his negligence caused the injuries for which suit is brought, are not sufficient without other evidence to establish that such driver was an inexperienced or incompetent driver. Gulla v. Straus, supra. See Orose v. Hodge Drive-It-Yourself Co., Inc., supra, paragraph three of the syllabus, and see Wery v. Seff, supra, 310.
4. As the majority opinion clearly discloses, there was no such other evidence.
As pointed out in the majority opinion, the mere fact that a driver does not have a license does not tend to prove that he is either incompetent or inexperienced.
The facts, as to the accident in a particular case, may tend to prove that a driver is an incompetent or inexperienced one. However, we all know that even competent and experienced drivers are negligent on occasions; and the evidence in the instant case only tended to prove such negligence — not the incompetence or inexperience of the driver.