Mundy v. Pirie-Slaughter Motor Co.

• Decision Date: 26 November 1947
• Docket Number: No. A-1344.,A-1344.
• Citation: 206 S.W.2d 587
• Parties: MUNDY et al. v. PIRIE-SLAUGHTER MOTOR CO.
• Court: Texas Supreme Court

Page 587

206 S.W.2d 587

MUNDY et al. v. PIRIE-SLAUGHTER MOTOR CO.

No. A-1344.

Supreme Court of Texas.

November 26, 1947.

Rehearing Denied January 7, 1948.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by J. E. Mundy against Pirie-Slaughter Motor Company for damages resulting from a collision between defendant's automobile and a tractor mower which plaintiff was operating, wherein the state intervened claiming rights by subrogation because of workman's compensation payments made to plaintiff. From a judgment for the defendant, the plaintiffs appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 202 S.W.2d 331, affirming the judgment, the defendant brings error.

Judgments of district court and Court of Civil Appeals reversed and cause remanded to district court for new trial.

Clark, Craik, Burns & Weddell and Chester Clark, all of Fort Worth, for J. E. Mundy, petitioner.

Price Daniel, Atty. Gen., and Charles E. Crenshaw, Asst. Atty. Gen., for the State, petitioner.

Strasburger, Price, Holland, Kelton & Miller and Hobart Price, all of Dallas, for respondent.

HART, Justice.

The plaintiff, J. E. Mundy, sued the defendant, Pirie-Slaughter Motor Company, for damages resulting to him when a tractor mower which he was operating in the ditch adjoining the Fort Worth-Dallas Highway was struck by an automobile belonging to the defendant. The State of Texas intervened in the suit, claiming rights by subrogation because of workmen's compensation payments made to Mundy as an employee of the State Highway Department. Mundy alleged in his petition that the defendant's automobile was being driven at the time of the collision by James Oscar Dickson (also called Dixon), a minor employee of defendant, that Dickson was guilty of negligence in numerous particulars, and that such negligence was the proximate cause of the collision. Mundy further alleged that Dickson was acting in the scope of his employment at the time of the injury, but there was no evidence to sustain this contention and it is not urged here. The basis upon which it is claimed here that the defendant is liable is that the defendant's agents permitted Dickson to take and drive the automobile when they knew, or by the exercise of ordinary care and prudence should have known, that Dickson was an incompetent and reckless driver. In connection with this contention, Mundy alleged that the, defendant "knew, or by the exercise of ordinary care and prudence could have and should have known, that said boy did not have a driver's license."

The defendant filed a special exception to this allegation upon the ground that it was "immaterial and irrelevant in that if taken as true, the having or not having the driver's license was not and could not have been a proximate cause of the accident of which the plaintiff complains * * *." This exception was sustained by the District Court. Evidence offered by Mundy to show that Dickson did not have a driver's license and that respondent had knowledge or notice of this fact was excluded by the court upon defendant's objection. At the close of the evidence the District Court submitted the case to the jury upon special issues, but after the jury was unable to agree upon answers to some of the issues, the court withdrew the case from the jury and entered judgment for the defendant. This judgment was affirmed by the Court of Civil Appeals. 202 S.W.2d 331.

The controlling question presented by this appeal is whether the District Court correctly held that the plaintiff could neither plead nor offer evidence to show that Dickson, defendant's minor employee, had no driver's license, and that defendant permitted him to drive the automobile with actual knowledge, or under circumstances that would be reasonable notice, that he did not have such license. This is a question which has not been decided previously by this Court.

We have held that the owner who entrusts his automobile to a person known to him to be an incompetent or reckless driver is guilty of negligence. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Allen v. Bland, Tex.Civ.App., 168 S.W. 35 (writ of error refused); Mayer v. Johnson, Tex.Civ.App.,148 S.W.2d 454 (writ of error dismissed, judgment correct). If such incompetent or reckless driver, through his negligent operation of the automobile, causes damage to a third person, the owner of the automobile is liable; the negligence of the driver does not break the chain of causation. Russell Construction Co. v. Ponder, 143 Tex. 412, 186 S.W.2d 233. Our decisions in this respect seem to be in accord with the unanimous holdings in other jurisdictions. See annotations in 36 A.L.R. 1137; 68 A.L.R. 1008; 100 A.L.R. 920; 168 A.L.R. 1364.

With respect to the effect, if any, to be given to the fact that the owner of the automobile, knows that the driver does not have a driver's license when he entrusts his car to such driver, the courts of other jurisdictions have reached a variety of conclusions. In some jurisdictions it has been held that the fact that the driver has no license is immaterial, because the only question is whether the driver is in fact incompetent or reckless and "the lack of such license would be no evidence whatever that he was not a capable, skilled and safe driver". See Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975, 977; compare Pugliese v. McCarthy, 160 A. 81, 10 N.J.Misc. 601; Patterson v. Surpless, 107 N.J.L. 305, 151 A. 754; Muller v. West Jersey & S. R. Co., 99 N.J.L. 186, 122 A. 693; Hala v. Worthington, 130 N.J.L. 162, 31 A.2d 844; Renner v. Martin, 116 N.J.L. 240, 183 A. 185; Opple v. Ray, 208 Ind. 450, 195 N.E. 81. Other cases have held that knowledge that the driver does not have a license is not in itself sufficient to show negligence on the part of the owner, but that it is some evidence or prima facie proof of negligence. Gordon v. Bedard, 265 Mass. 408, 164 N.E. 374; Kenyon v. Hathaway, 274 Mass. 47, 174 N.E. 463, 73 A.L.R. 156; Le Blanc v. Pierce Motor Co., 307 Mass. 535, 30 N.E.2d 684; Austin v. Rochester Folding Box Co., 111 Misc. 292, 181 N.Y.S. 275; Chamberlain v. Riddle, 155 Pa.Super. 507, 38 A.2d 521; Owens v. Carmichael's U-Drive Autos, 116 Cal. App. 348, 2 P.2d 580; Shifflette v. Walkup Drayage & Warehouse Co., 74 Cal.App.2d 903, 169 P.2d 996; Crittenden v. Murphy, 36 Cal.App. 803, 173 P. 595; compare Canzoneri v. Heckert, 223 Wis. 25, 269 N.W. 716; Parks v. Pere Marquette Ry. Co., 315 Mich. 38, 23 N.W.2d 196. Still other courts have held that entrusting an automobile to an unlicensed driver in violation of a statute is negligence per se on the part of the owner, but that the burden rests upon the plaintiff further to show that the collision was caused by the negligence of the driver on the occasion in question. Cirosky v. Smathers, 128 S.C. 358, 122 S.E. 864; Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134; Hoke v. Atlantic Greyhound Corporation, 226 N.C. 692, 40 S.E.2d 345; Walker v. Klopp, 99 Neb. 794, 157 N.W. 962, L.R.A. 1916E, 1292. Compare Hertz Drive-Ur-Self Drive System v. Hendrickson, 109 Colo. 1, 121 P.2d 483.

In part the differences in the holdings of the courts in other jurisdictions are to be explained upon the grounds of differences in the statutes requiring operators of motor vehicles to have licenses. Where licenses are required simply for the purpose of identification of the driver or for the purpose merely of raising revenue, and no examinations or other requirements of competence are requisite to the issuance of a license, the fact that an operator does not have a license does not have any connection with his ability to operate the vehicle with skill and care. The situation in such cases is like that of a statute requiring license plates to be affixed to automobiles, in which case this Court said, in Worsham Buick Co. v. Isaacs, 121 Tex. 587, 51 S.W.2d 277, 280, 86 A.L.R. 232:

"The various provisions of our statutes, which relate to the use of license plates on automobiles, disclose no legislative purpose to prevent collisions on the public highways. The safety of travelers on the highways is plainly not the object at which those provisions aim. They do not purport to extend protection to persons using the public highways. In disobeying those provisions, the motor company did not violate any duty which it owed to Isaacs or to any other traveler on the public highways."

See also St. Louis, B. & M. Ry. Co. v. Price, Tex.Com.App., 269 S.W. 422, 428.

An examination of our statute...