1 Div. 33.
November 28, 1918.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Webb, McAlpine Grove, of Mobile, for appellant.
Thornton Frazer and H. U. Feibelman, all of Mobile, for appellee.
The general rule is that the mere lender of an automobile is not liable to one who is injured by its negligent use in the hands of the borrower. 2 R. C. L. p. 1201, § 35.
In Parker v. Wilson, 179 Ala. 361, 371, 60 So. 150, 153, 43 L.R.A. (N.S.) 87, it was said by way of dictum that —
"In the case of a mere permissive use, the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner and the driver, negligence of the one in intrusting the machine to an incompetent driver, of the other in its operation."
But negligence of the owner in such a case must be predicated, not only upon the incompetence of the borrower to operate it safely, but upon the owner's previous knowledge or notice of his want of the necessary skill. Gardiner v. Solomon, supra. The owner's liability is here founded upon the same general principles as the liability of a master to an injured employé by reason of his employment of an incompetent fellow servant, where incompetence has produced the injury. In those cases it has been ruled that the burden is on the plaintiff to show the incompetence of the servant who injured him, and the master's knowledge thereof, and that such incompetence cannot be established by showing a single act of negligence. Owen v. A. G. S. R. R. Co., 181 Ala. 552, 61 So. 924.
These limitations are obviously applicable, a fortiori, to cases like the one at bar.
The bill of exceptions does not disclose any evidence tending to show that defendant knew or had notice that Dahlgreen was an incompetent chauffeur; nor, indeed, that he was incompetent.
On the contrary, it appears that he had often operated cars, without accident, so far as the record shows.
Nor can we discover any support for the charge that defendant "permitted" Dahlgreen to use this car. The most that can be said is that he failed to take precautions to prevent him from using it, which, of course, was no breach of duty to plaintiff.
These were the issues in the case, and the trial judge erred in refusing the general affirmative charge as requested by defendant.
It was error to permit plaintiff to testify that just after the collision Dahlgreen came back to where he was and stated that he was working for Beville, the defendant, in the absence of any predicate laid for his impeachment thereby. Such a remark by Dahlgreen was no part of the res gestæ, but was hearsay merely, and inadmissible for any purpose.
Other rulings need not be now considered.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.