Deck v. Sherlock

• Decision Date: 24 February 1956
• Docket Number: No. 33857,33857
• Citation: 162 Neb. 86,75 N.W.2d 99
• Parties: Lee DECK, Appellant, v. Richard SHERLOCK, Robert F. Hull and William Thomas, Appellees.
• Court: Nebraska Supreme Court

Page 99

75 N.W.2d 99

162 Neb. 86

Lee DECK, Appellant, v. Richard SHERLOCK, Robert F. Hull and William Thomas, Appellees.

No. 33857.

Supreme Court of Nebraska.

Feb. 24, 1956.

Syllabus by the Court.

1. A motor vehicle is not an inherently dangerous instrumentality and the owner is not generally liable for its negligent use by another to whom its control and operation is entrusted.

2. Liability on the part of the owner of an automobile may arise where he entrusts the control and operation of his motor vehicle to a person so lacking in competency and skill as to convert the vehicle into a dangerous instrumentality.

3. The liability on the part of an owner of an automobile for its negligent operation by another to whom its control and operation is entrusted does not arise out of the relationship of the parties but out of the act of entrustment to one whose incompetency is known or should have been known by the owner.

4. In order to charge the owner of a motor vehicle with liability for negligence in entrusting the vehicle to an incompetent driver, it must be shown that the owner had knowledge of the driver's incompetence as an operator of a motor vehicle, or that in the exercise of ordinary care he should have known thereof from the facts and circumstances known to him.

5. Where the owner of a motor vehicle engages with another in the drinking of alcoholic beverages and during the course of which he entrusts the control and operation of his automobile to such other person, it is ordinarily for the jury to determine whether or not the owner exercised due care in so doing.

6. Instructions which properly state the law of the case on the theory shown by the pleadings and evidence are not erroneous.

7. Where evidence is admitted as an admission against interest against one defendant, it is ordinarily no admissible against his codefendant. In such a case it is not error for the court to limit the purpose of its admission and to refuse its consideration by the jury on an issue as to which it is immaterial or incompetent.

Maupin & Dent, Harold W. Kay, Richard W. Satterfield, North Platte, for appellant.

McGinley, Lane, Powers & McGinley, Ogallala, Kirkpatrick & Dougherty, York, Chambers, Holland & Groth, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CARTER, Justice.

This is an action brought by Lee Deck to recover a judgment against Richard Sherlock, Robert F. Hull, and William Thomas for personal injuries and property damage resulting from an automobile accident. The trial court directed a verdict in favor of the defendant Sherlock. The jury found in favor of the defendant Thomas. The jury returned a substantial verdict against the defendant Hull. The plaintiff appeals from the judgments entered in favor of Sherlock and Thomas. No appeal was taken by Hull and the judgment against him has become final, and therefore it is not involved in this appeal.

The plaintiff was a passenger in an automobile operated by his wife, Helen Deck. They were accompanied by the wife's mother and their two minor sons, Lee and Dennis. Plaintiff was a resident of Grand View, Missouri, and was at the time of the accident making a trip to Sheridan, Wyoming. The accident happened about 2 miles north of Ogallala, Nebraska, at the junction of U. S. Highway No. 26 and State Highway No. 61. The collision was between plaintiff's automobile and a car driven by the defendant Hull who was its only occupant. The details of the accident are important only as they incidentally bear upon the issues presented by this appeal in view of the fact that no appeal was taken from the verdict and judgment against Hull.

The defendant Sherlock was the owner of the car driven by Hull, and the defendant Thomas was the owner and operator of a third car which was following the car driven by Hull under the circumstances hereinafter to be related. The evidence is clear that at the time of the accident Hull was under the influence of intoxicating liquor. In fact, Hull admits that he was intoxicated.

The evidence pertinent to this appeal is substantially as follows: On April 22, 1953, Sherlock and Hull were driving around in Ogallala, Sherlock doing all the driving. They were engaged in drinking beer during the afternoon, the evidence being that they drank in excess of six cans of beer during that period. In the early evening they picked up one Harold Duffy and evidently more beer was consumed. The three of them continued to drive around town until about 9:30 p. m., when Sherlock, a disabled veteran, announced that his leg was hurting him and that he desired to go home. At this time Duffy was driving the car, Hull sat in the middle, and Sherlock was on the right. They drove to Sherlock's home and let him out. Sherlock testified that none of the three was intoxicated at that time. Duffy was not present at the trial and gave no evidence by deposition or otherwise.

Hull testified that when Sherlock got out of the car, Sherlock said: 'You can use the car * * * Bring it back.' Sherlock testified that he told Duffy he could drive the car down to the Vets Club to get Thomas to pick them up. Sherlock said he did not tell Hull that he could drive the car and that he knew that Hull's license to drive had been revoked for driving while under the influence of intoxicating liquor. Sherlock stated that Hull had not driven the car up to that time and that his conversation relating to the use of the car was directed to Duffy and not to Hull. Hull said that he had not driven the car prior to the time that Sherlock left the automobile. He stated also that Sherlock never gave him any permission to drive the car. After Sherlock got out of the car at his home, Duffy drove it around town for about an hour and then parked it in front of the Vets Club.

Duffy and Hull entered the Vets Club, where they joined Thomas and one Supanchick in drinking alcoholic beverages. They continued to drink until Hull was refused further drinks by the management. During this drinking a discussion arose concerning the relative speeds of Fords and Mercurys. There is some evidence that when the four of them left the Vets Club one of them stated they intended to race the Sherlock Ford and the Thomas Mercury. Thomas and Hull stated that there was considerable discussion of the relative speeds of the two cars, but that it was all talk and that it was never their intention to enter into a race. It is evident from the record that the four were intending to drive out to the junction, where the accident happened, to talk and then proceed to the Thomas home several miles beyond the junction of the two roads. Hull got into the Sherlock car and proceeded north. The other three got in the Thomas car and followed. Thomas said they were a considerable distance behind the car driven by Hull, that they saw its taillights from time to time, and that they never attempted to pass or even catch up with it. Thomas testified that he came upon the accident shortly after it happened, that he let Duffy out to flag traffic and otherwise assist, and that he and Supanchick went immediately to Ogallala to get an ambulance and to notify the safety patrol.

The plaintiff and his wife testified that as they looked south just prior to the collision it seemed that there were two sets of headlights approaching from the south. Mrs. Deck testified that one set of headlights appeared to be following the first. There is evidence in the record that a third car was parked 6 or 8 feet from the Deck car shortly after the accident. The testimony also shows that some person, unknown to any of the witnesses, assisted in removing Mrs. Deck's mother and Lee Deck, Jr., from the car. It is shown that this same person covered them with blankets, some of which belonged to the defendant Thomas.

The record further shows that State Patrolman Eugene Morrissey arrived at the scene of the accident about 1:10 a. m. The Thomas car was there in addition to the two cars involved in the accident. He testified that Hull and Duffy were very drunk, and that Thomas had been drinking and was very excited.

It is the contention of the appellant that the evidence shows that Sherlock was negligent in entrusting his automobile to Duffy and Hull under the circumstances shown, and that the trial court erred in directing a verdict in favor of Sherlock. Neither the law of master and servant, nor the law of principal and agent, is applicable to the instant case. Walker v. Klopp, 99 Neb. 794, 157 N.W. 962, L.R.A.1916E, 1292. The controlling rule is as follows: The law requires that an owner use care in allowing others to assume control over and operate his automobile, and holds him liable if he entrusts it to, and permits it to be operated by, a person whom he knows or should know to be an inexperienced, incompetent, or reckless driver, to be intoxicated or addicted to intoxication, or otherwise incapable of properly operating an automobile without endangering others. Williamson v. Eclipse Motor Lines, Inc., 145 Ohio St. 467, 62 N.E.2d 339, 168 A.L.R. 1356. A motor vehicle is not an inherently dangerous instrumentality and the owner is not generally liable for its negligent use by another to whom it is entrusted to be used. Liability may arise, however, if the owner permits operation of his motor vehicle by one whom he...