McNeill v. Spindler

• Decision Date: 27 November 1950
• Docket Number: No. 3710,3710
• Citation: 62 S.E.2d 13,191 Va. 685
• Parties: ALFRED MCNEILL AND S. H. MCNEILL v. HENRY M. SPINDLER, ET AL. Record
• Court: Virginia Supreme Court

Page 13

62 S.E.2d 13

191 Va. 685

ALFRED MCNEILL AND S. H. MCNEILL v. HENRY M. SPINDLER, ET AL.

Record No. 3710.

Supreme Court of Appeals of Virginia

November 27, 1950.

W. I. Moncure and W. P. Bagwell, Jr., for the plaintiffs in error.

W. Moncure Gravatt and W. M. Gravatt, Jr., for the defendants in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Alfred McNeill, driving the automobile of his father, S. H. McNeill, was injured in a collision with a truck driven by Earl Wynn and owned by the Spindlers, trading as Blackstone Milling Company. Alfred recovered a verdict against Wynn and the Spindlers for his injuries and his father recovered a verdict against them for damages to his car, their separate actions being tried together.

The plaintiffs sought to hold the Spindlers on the ground that they negligently entrusted their truck to an incompetent driver, Wynn; and on the further ground that he was their agent in the scope of his employment when the accident happened.

At the conclusion of the evidence the court sustained the motion of the Spindlers to strike the evidence on the question of agency, but overruled it on the question of incompetent driver and submitted that issue to the jury. After the verdicts, however, the court concluded that the evidence on the issue of incompetency was not sufficient to support the verdicts and thereupon set them aside as to the Spindlers, and entered judgment in their favor. The verdicts against Wynn were approved and judgment was entered thereon against him. He did not appeal and his negligence as the cause of the accident is treated as established.

The assignments of error present, first, the question of whether the evidence was sufficient to support the verdicts on the ground that Wynn was an unfit driver, and the Spindlers were negligent in permitting him to use their truck. The circumstances in connection with his having the truck will be stated later on. The factual issue involves the extent of his use of intoxicants and what the Spindlers knew about it.

The evidence establishes that Wynn was under the influence of intoxicants at the time of the accident. He was cross-examined by the plaintiffs as an adverse witness and testified that he had drunk three or four bottles of beer shortly before the accident and took a drink of whiskey when he got home after the accident; that he drank the beer at the Acme Barbecue, where he had previously been 'quite a few' times drinking beer; that he drank it 'most any time' he could get it, and drank whiskey 'most any time' he could get it, too. He said both Spindlers knew he drank and he had taken a drink with both of them in their kitchen; that he would take one any time he could get it, but he had never been drunk and did not drink that much.

Plaintiffs introduced three other witnesses on this subject. The first, a delivery boy in a drugstore, said he had known Wynn all his life; that he had not seen him drinking lately; that he had heard him say he drinks, but he did not know it himself. He was asked, 'Does he have a reputation for drinking?' and his reply was, 'I don't know about that.'

The second witness, a service station operator who had known Wynn about six years, said he had seen him when he thought he had a drink, but that he had no reputation for being a drinking man, other than he would take a drink when he could get it.

The third witness was a merchant and a justice of the peace who had known Wynn 15 or 20 years. He was asked whether Wynn was a drinking man. He replied, 'I don't know. That could take in right much territory. I think he will take a drink all right. I think probably I have seen him with beer or something on his breath, but I have never seen him drink. ' He was asked whether he had that reputation and he said, 'I don't think so.'

For the defendants, the Spindlers, who are father and son, testified that Wynn had worked for them about nine years as a general handyman and truck driver and had been employed before that by their predecessor; that it had never come to their knowledge prior to the accident that Wynn had ever been under the influence of intoxicants or drunk at any time, either on or off duty; that they had found him truthful and trustworthy. The elder Spindler testified that he had on one occasion given him a drink at Spindler's house, but he did not know he drank to amount to anything; that he knew Wynn would take a drink maybe nine years ago when he started working for him, but none of the many customers that Wynn had waited on had ever said anything against him and he had no reason to inquire into his drinking habits.

The younger Spindler testified he had given Wynn a drink of liquor and, therefore, knew he would drink.

Another witness for the defendants, a former partner of the elder Spindler's in the milling business, testified that Wynn was an employee of that business and he had known him all his life; that this accident was the first time he had ever heard anything wrong about him and that he regarded him as a trustworthy person, qualified to operate a truck; that he had confidence in him and Wynn had given perfect service when he had worked for him. Another witness, a dairyman and former mail carrier, had known Wynn for 20 years and had never heard anything against him; he had never known of his being drunk and had never seen him under the influence of liquor in his life. Another witness had known him for seven or eight years, had been to the defendants' mill many times and Wynn had waited on him; he had never heard anything against him. C. F. Epps, a merchant, was formerly in the milling business and had employed Wynn, whom he had known since 1931 or 1932. He said he had never seen him take a drink or smelled whiskey on him; that as far as he knew his record was excellent and he did not know a better boy; that he would give him a job tomorrow and trust him with his truck.

The test of liability under the doctrine of entrustment is whether the owner knew, or had reasonable cause to know, that he was entrusting his motor vehicle to an unfit driver likely to cause injury to others. In the case of intoxication, there must be knowledge, or imputable knowledge, that the person to whom the vehicle is entrusted is addicted to the use of intoxicants, or has the habit of drinking. The owner must know, or be chargeable with knowledge, that the driver's habits are such that he is likely to drive while he is intoxicated. Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 50 A.L.R. 1425; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E. (2d) 530; Williamson v. Eclipse Motor Lines, 145 Ohio St. 467, 62 N.E. (2d) 339, 168 A.L.R. 1356, and Anno. 1364 at p. 1375; Mitchell v. Churches, 119 Wash. 547, 206 P. 6, 36 A.L.R. 1132, and Anno. 1137 at p. 1148; 60 C.J.S., Motor Vehicles, sec. 431b, p. 1062.

Measured by this test we conclude that the evidence in this case is not sufficient to cast liability upon the truck owners. Certainly they did not know that Wynn was an unfit driver. He had been driving for them for nine years and had never had an accident. He was once involved in an accident but he was not driving and he was not drinking. No one had ever seen him driving while intoxicated and no one had ever charged him with doing that. There is no evidence that he had a reputation of being a drinking man or addicted to liquor. The plaintiffs' witnesses themselves testified to the contrary. Defendants knew he would take a drink and had given him one themselves. He testified on cross-examination that he would take one any time he could get it, but that expression, frequently heard, indicates a willingness rather than a practice, and it is too vague to convict him of being addicted to the habit.

Liability of a motor vehicle owner ought not to result from mere knowledge that his driver would take a drink. If only teetotalers could be employed, many vehicles would probably stand idle. Liability in such cases results only from negligence, and negligence arises from acts or omissions likely to produce injury. On the record here we find no evidence sufficient to support the theory that the defendants knew or ought to have known that when they permitted Wynn to drive their truck he was likely to drive it while intoxicated. It had never happened in the nine years of his employment and there was not enough to charge them with knowledge that it was likely to happen on this occasion.

In Crowell v. Duncan, supra, a father was held liable for injuries caused by his son while driving an automobile which the father had entrusted to him to use at will, in the face of knowledge, actual or imputable, that the son was very intemperate and in the habit of getting under the influence of intoxicants. The accident that happened there was one which the evidence showed the father ought to have known was likely to happen. See comments on that evidence in Flanagan v. Kellam, 187 Va. 754, 757, 48 S.E. (2d) 69, 70.

McIlroy v. Akers Motor Lines, supra, on facts similar to those here, but even less favorable to the defendant, held that the owner was not liable. The driver there had worked for the defendant for eight months prior to the accident and there was no evidence of his unfitness during that period. The court said that the evidence was not such as to show that the injury complained of was probable or likely to occur, or could reasonably have been foreseen when the truck was entrusted to the driver for a temporary, specific purpose. Here the employment had...