Owensboro Undertaking & Livery Ass'n v. Henderson

• Decision Date: 15 March 1938
• Citation: 273 Ky. 112,115 S.W.2d 563
• Parties: OWENSBORO UNDERTAKING & LIVERY ASS'N v. HENDERSON.
• Court: Kentucky Court of Appeals

115 S.W.2d 563

273 Ky. 112

OWENSBORO UNDERTAKING & LIVERY ASS'N v. HENDERSON.

Court of Appeals of Kentucky

March 15, 1938

Rehearing Denied May 3, 1938.

Appeal from Circuit Court, Daviess County.

Action by Tom Henderson against the Owensboro Undertaking & Livery Association for personal injuries sustained when the plaintiff was struck by an automobile rented by the defendant to driver who was at the time allegedly intoxicated. From an adverse judgment, the defendant appeals.

Affirmed.

O. L Fowler, of Owensboro, for appellant.

Ridley M. Sandidge, of Owensboro, for appellee.

CLAY Justice.

The appeal is from a $1,655 judgment for personal injuries.

Appellant Owensboro Undertaking & Livery Association, rents cars to others who drive themselves. About 2:30 o'clock on the afternoon of September 24, 1936, appellant rented one of its cars to James Wallace Wimsatt. While crossing the street that night, appellee was struck and injured by the car then being driven by Wimsatt. A recovery was sought on the ground that the collision was due to Wimsatt's negligence, occasioned by the fact that he was intoxicated, and that appellant at the time of the hiring knew, or in the exercise of ordinary care should have known, that Wimsatt was intoxicated and unfit to operate a motor vehicle. It is unnecessary to detail the circumstances attending the accident. Appellant's principal contention is that the evidence that it knew, or in the exercise of ordinary care should have known that Wimsatt was intoxicated at the time he ran the car, was not sufficient either to take the case to the jury or to sustain the verdict. On this question we have the following evidence on behalf of appellee: About 10:30 a. m. on the day of the accident Wimsatt went to a drug store and purchased a pint and a half of gin. He then proceeded to Jeff Hodge's restaurant near the Ohio river bank in Owensboro, and he, a boy by the name of Harris, and another boy by the name of Timbrook drank the gin. After disposing of the gin, Wimsatt and Harris decided to hire a car, and at about 2 p. m. left Hodge's restaurant for that purpose and proceeded up the street toward appellant's place of business. J. D. Hodge saw Wimsatt both before and after he hired the car. Before the hiring Wimsatt was drunk and barely able to walk. After the hiring, his condition was worse. He could tell by looking at Wimsatt and watching his walk and actions. After leaving Jeff's place, they met Nolan Allen about 2:30 p. m. and Allen says that Wimsatt had been drinking and he guessed was about half drunk. On the other hand, appellant's evidence is as follows: Wimsatt admitted that he told N.C. Howard, appellant's manager, that he was an experienced driver and did not drink. Mr. Howard says that he asked the boys if they drank and Wimsatt said, "No sir, I don't drink," and the other boy said, "I drink, but I have not had a drink." Howard was corroborated by J. W. Allen, C. H. Reed, and Miss Lettie Gabbert, who say they were present and heard what occurred. The same witnesses also say that they observed the boys and saw nothing in their conduct or speech indicating that they had been drinking.

Automobiles are not regarded as dangerous instrumentalities, and ordinarily, the owner who intrusts his car to another is not liable for the latter's negligence; but as such machines are dangerous instrumentalities in the hands of an incompetent driver, the owner is liable if he knows, or under the facts known to him in the exercise of ordinary care should know, that the person driving the car is incompetent to drive it. Saunders Drive-It-Yourself Company v. Walker, 215 Ky. 267, 284 S.W. 1088; Brady v. B. & B. Ice Company, 242 Ky. 138, ...