Beville v. Taylor

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Beville v. Taylor, 202 Ala. 305, 80 So. 370 (Ala. 1918)
• Decision Date: 28 November 1918
• Docket Number: 1 Div. 33
• Parties: BEVILLE v. TAYLOR.

80 So. 370

202 Ala. 305

BEVILLE v. TAYLOR.

1 Div. 33

Supreme Court of Alabama

November 28, 1918

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by Edward Taylor against P.D. Beville. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Reversed and remanded.

As amended, count A, which alone was submitted to the jury charges that defendant negligently permitted an incompetent driver, to wit, Lee or Leo Dahlgreen, to operate the auto of defendant, and during such permissive use of such machine and while in control thereof, the said driver negligently ran said machine into or upon the horses and wagon of plaintiff while he was driving the same on a public highway in Mobile county, etc. Demurrers were overruled to the count, and there was judgment for plaintiff, and defendant appeals, assigning as error this action of the trial court and certain other rulings on evidence and instruction.

Webb McAlpine & Grove, of Mobile, for appellant.

Thornton & Frazer and H.U. Feibelman, all of Mobile, for appellee.

SOMERVILLE J.

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."

This is unquestionably the law, and it has been so ruled in the recent case of Gardiner v. Solomon, 75 So. 621, L.R.A.1917F, 380.

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...