Saunders Drive-It-Yourself Co. v. Walker

• Citation: 284 S.W. 1088,215 Ky. 267
• Parties: SAUNDERS DRIVE-IT-YOURSELF CO. v. WALKER.
• Decision Date: 22 June 1926
• Court: Court of Appeals of Kentucky

284 S.W. 1088

215 Ky. 267

SAUNDERS DRIVE-IT-YOURSELF CO. v. WALKER.

Court of Appeals of Kentucky.

June 22, 1926

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Clarence E. Walker against the Saunders Drive-It-Yourself Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

William M. Duffy and A. J. Bizot, both of Louisville, for appellant.

Allen P. Dodd, of Louisville, for appellee.

HOBSON C.

The Saunders Drive-It-Yourself Company operates a garage in Louisville at which it hires out its automobiles to persons who drive the cars themselves. On May 15, 1923, it hired a car to one Carl Webb, and while Clarence E. Walker was driving home in his automobile in a westerly direction on Oak street, Webb, driving the car which he had hired, was driving eastward, and in passing a truck his car, which was running rapidly, skidded on the wet street and ran into Walker's car, badly damaging it. Walker brought this suit to recover the damages he sustained, and a judgment having been rendered in his favor for $500, the Drive-It-Yourself Company appeals.

The first question presented is: Was the defendant entitled to a peremptory instruction? The fact that Webb declined to give his name was immaterial, but his statement that it was all his fault, if made immediately after the accident and before they telephoned for help, may properly be admitted, but what passed between them after they telephoned for help is not competent unless appellant's superintendent was present for time for reflection had then elapsed. Walker also testified that after the superintendent of the company came Webb said to the superintendent:

" 'Mr. Walker wasn't to blame at all; it was my fault entirely.' I said, 'Didn't you know you would skid on a street like that going like you were?' He said, 'No, this is only the third time I have driven a car.' "

This evidence is competent, but it is the only evidence on the subject, and is not sufficient to show notice to the company of the incompetency of Webb to run the car when it was hired to him.

In 38 C.J. § 71, p. 94, the rule is thus stated:

"The garage keeper is not liable to a third person who was injured by reason of the negligent operation of the automobile by the hirer, nor is he chargeable with knowledge of the hirer's incompetency."

While there is some conflict of authority on the question, the weight of authority supports the text. In Neubrand v. Kraft, 169 Iowa 444, 151 N.W. 455, L.R.A. 1915D, 691, the rule is thus stated:

"The motorcycle, the bicycle, the stagecoach, the ordinary carriage drawn by horses, all have their possibilities of peril and

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