Bailey v. Simon

• Decision Date: 16 December 1940
• Docket Number: 17458.
• Court: Court of Appeal of Louisiana — District of US
• Parties: BAILEY ET UX. v. SIMON ET AL.

199 So. 185

BAILEY ET UX. v. SIMON ET AL.

No. 17458.

Court of Appeal of Louisiana, Orleans.

December 16, 1940

Appeal from Twenty-Fourth Judicial District Court, Parish of St John the Baptist; L. Robert Rivarde, Judge.

Suit by Numa Bailey and his wife against Theodore Simon and another to recover for the death of plaintiffs' son resulting from injuries sustained in a collision with an automobile driven by named defendant. From a judgment of dismissal plaintiffs appeal.

Affirmed in part and reversed and remanded in part.

Lubin F. Laurent and Ben Washastrom, both of New Orleans, for appellants.

Rene J. Waguespack, of New Orleans, for appellees.

McCALEB, Judge.

The plaintiffs, Mr. and Mrs. Numa Bailey, brought this suit seeking recovery of damages against the defendants, Theodore Simon and his mother, Mrs. Maria Waguespack, wife of Albert Simon, in solido, for the death of their son resulting from injuries received by him on November 6, 1938, when he was struck by an automobile driven by the defendant Theodore Simon.

In their petition, plaintiffs allege, in substance, as follows That, on November 6, 1938, their son, Leopold Bailey, was riding a bicycle on the riverside road of the Louisiana Purchase Highway in the Parish of St. John the Baptist; that, when he reached a point approximately 100 feet below the Lucy Public School, the defendant Theodore Simon, who was proceeding from the opposite direction in a sedan automobile and on the wrong side of the road, suddenly and without any warning whatsoever, drove the automobile into the bicycle and that, as a result of the accident, their son sustained serious injuries from which he finally succumbed on August 16, 1939.

Plaintiffs further charge that the automobile which caused the damage was owned by the defendant, Mrs. Maria Simon, the mother of the driver, Theodore Simon; that her son, Theodore Simon, was a very reckless driver; that he had the reputation of being such in the community in which he lived; that his mother was aware that he was a reckless driver; that, despite her knowledge of these facts, she permitted him to use her automobile and that, in doing so, she contributed to the cause of the accident and the subsequent death of their son, Leopold Bailey. Plaintiffs further allege that their son was unmarried at the time of his death; that he was living with them and that he contributed one-half of his wages to their maintenance and support.

In due course, the defendants appeared and filed their answer to plaintiffs' petition in which they admitted the happening of the accident but denied any responsibility to the plaintiffs for the consequences thereof.

On the day set for the trial of the merits of the case, the defendants interposed various exceptions to plaintiffs' petition. After hearing argument on these exceptions, the trial judge sustained (1) an exception of no cause of action filed on behalf of the defendant Mrs. Maria Simon, and (2) an exception of no right of action filed on behalf of both defendants. Plaintiffs' suit was accordingly dismissed. Wherefore this appeal.

The exception of no cause of action of the defendant Mrs. Simon, which was sustained by the district judge, is grounded on the premise that the plaintiffs do not allege in their petition that the defendant Theodore Simon was acting for and on behalf of his mother at the time of the accident and that, consequently, in the absence of averments showing the existence of the status of principal and agent, she cannot be held liable merely because she was the owner of the offending automobile.

Counsel for plaintiff do not contend that the liability asserted against Mrs. Simon is based upon the theory that her son was acting as her agent at the time of the accident. They maintain, however, that the petition clearly sets forth a cause of action because it is averred that Theodore Simon was a reckless and careless driver; that he had a reputation as such in the community in which he lived; that his mother knew that he was reckless and that she was therefore negligent in permitting him to use her automobile. It is argued that these allegations are sufficient to bring the case under the doctrine, established by the jurisprudence of this State, that an owner of an automobile, who lends his car to an incompetent driver for the latter's use and benefit, knowing that such driver is incompetent, is liable to third persons who may be injured as a result of an accident caused by the carelessness of the borrower. In support of the contention, the following Louisiana cases are cited: Toole v. Morris-Webb Motor Co., __ La.App. __, 180 So. 431; Baader v. Driverless Cars, Inc., 10 La.App. 310, 120 So. 515; Anderson v. Driverless Cars, Inc., 11 La.App. 515, 124 So. 312, and Davis v. Shaw, __ La.App. __, 142 So. 301.

On the other hand, counsel for Mrs. Simon, while conceding that there are instances where an owner of an automobile may become liable for his negligence in lending his car to an incompetent person, maintains that the allegations of plaintiffs' petition are insufficient to show that the defendant Theodore Simon was an incompetent or inexperienced driver and that the mere allegation that he was a reckless driver is a conclusion of law which cannot be considered in determining whether the petition sets forth a cause of action. In stressing this contention, counsel places great reliance upon the decision of the Second Circuit Court of Appeal in Davis v. Shaw, supra.

It is well recognized in the jurisprudence that, ordinarily, the owner of an automobile, who lends his car to another for the latter's convenience, is not responsible to third persons for injuries received by them as a result of the negligent operation of the car by the borrower. Liability is denied in such instances because the borrower of the automobile is not the agent of the owner and also because a motor vehicle is not considered to be a dangerous instrumentality per se such as ferocious animals, locomotives, gunpowder, dynamite, or other dangerous machines or agencies. See 42 Corpus Juris under Motor Vehicles, Section 16, Page 614.

On the other hand, it is equally well established, as an exception to the general rule above stated, that there are instances in which an automobile may become a dangerous instrumentality--that is, where the owner permits it to be driven in a defective condition so that it cannot be controlled when it is in operation or where he allows it to be operated by persons who do not know how to drive, by insane persons or by persons who are similarly incompetent by reason of temporary or permanent defects in their mental or physical faculties. In such instances, where it appears that the owner of an automobile has entrusted its use to an incompetent person, with full knowledge of the borrower's inability, he may render himself responsible to another, who is injured by the carelessness of the borrower, for his negligence in permitting his car to become a dangerous instrumentality by its use upon the public highways in incompetent hands. In Huddy's Cyclopedia of Automobile Law, Volumes 3 and 4, § 42, it is stated: " Similarly, where the owner of a car lends, rents or otherwise intrusts it to one, though not an agent or servant, who is so incompetent or inexperienced in the handling of the same as to convert it into a dangerous instrumentality, and such incompetency or inexperience is known to the owner, he is liable for the consequences of such person's negligence."

In 5 Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, § 2924, we find the following:

" An automobile, though not dangerous per se, is, in the hands of a person having no knowledge of how to drive it, a dangerous machine to turn loose on busy streets, and though, as a general rule, in the absence of statute, an owner of a motor vehicle is not liable for injuries to third persons from its negligent use by another, to whom he loans or intrusts it for the latter's purposes, an exception to the rule exists where the owner loans his machine to one who is so reckless, heedless, or incompetent in his operation of the vehicle loaned as to render it, while in his hands, a dangerous instrumentality, especially where the one to whose charge the car is committed is prohibited by statute from operating it.

" In such cases the owner is liable for the driver's negligence in the operation of the machine, if he knows, at the time he so intrusts it to him, of the driver's character and habits, with respect to operating automobiles or of his incompetency, or if he should know such driver to be reckless or incompetent, and for all injuries naturally and probably resulting from such driver's recklessness or incompetency. The liability in such instances rests not upon the fact of ownership, but upon the combined negligence of the owner in intrusting the machine to an incompetent and reckless driver and of the driver in its operation. * * *"

In Baader v. Driverless Cars, Inc., supra, we held that a corporation that rents an automobile to a drunken driver is liable for the damages sustained by a pedestrian due to such driver's negligence upon the principle that one who entrusts to incompetent hands a potentially dangerous agency, such as an automobile, is responsible for the mischief done. To the same effect is our decision in the case of Anderson v. Driverless Cars, Inc., supra.

In Toole v. Morris-Webb Motor Co., Inc. supra, the plaintiffs' petition alleged that their son had been killed by the negligent operation on the part of one Burns of an automobile which had been purchased by him from the defendant, Blankenship Motors, Inc.; that Blankenship Motors was responsible to them for the consequences of the accident because it...