Otoupalik v. Phelps

• Decision Date: 04 June 1923
• Docket Number: 10366.
• Citation: 216 P. 541,73 Colo. 433
• Court: Colorado Supreme Court
• Parties: OTOUPALIK v. PHELPS.

216 P. 541

73 Colo. 433

OTOUPALIK v. PHELPS.

No. 10366.

Supreme Court of Colorado

June 4, 1923

Department 3.

Error to District Court, Weld County; George H. Bradfield, Judge.

Action by Hillma Christine Otoupalik against Frank E. Phelps and others. Judgment dismissing the complaint as to defendant named, and plaintiff brings error.

Affirmed.

Joseph C. Ewing and Worth Allen, both of Greeley for plaintiff in error.

James W. McCreery, Donald C. McCreery, and Hubert D. Waldo, Jr. all of Greeley, for defendant in error.

CAMPBELL J.

The object of this action is to recover damages for personal injuries actually inflicted upon the plaintiff by the defendant Galland, who drove an automobile upon and into a car which the plaintiff was then driving. The other two defendants, Phelps and Nicholas, were not present at the time, and exercised no control over Galland in driving the car. They are sought to be charged as joint wrongdoers upon the ground that, knowing Galland to be a very careless and reckless driver of automobiles, they permitted him 'to drive an automobile which they owned or had in their possession.' Nicholas was not served with process. Galland and Phelps appeared and each filed a separate motion and demurrer; those of Galland being overruled, those of Phelps sustained. Plaintiff elected to stand by her complaint, and the court dismissed the action as to Phelps. The only inquiry on this review is as to the sufficiency of the complaint as to Phelps, who is the sole defendant in error.

Assuming but not deciding, that the disjunctive allegation above quoted fastens liability on Phelps as a joint wrongdoer, if the complaint is otherwise sufficient, we proceed at once to consider the main question before us: The liability of a bailor to third persons for negligence of the bailee in using the subject of the bailment. That the permission given by Phelps to Galland to use the automobile constitutes a bailment is admitted. The general rule unquestionably is that a bailor is not liable to third persons for injuries resulting from the negligent use by the bailee of the thing bailed. There are exceptions to the general rule, under the doctrine of respondeat superior, as where the relation is that of master and servant, or where there is involved 'a family purpose,' or where the bailment is to an infant, lunatic, or intoxicated person, or the thing bailed is in itself a 'dangerous instrumentality.' None of these elements is here present. All are eliminated by exclusion of the charging language of the complaint. No claim that the automobile is a dangerous instrument is asserted. Phelps' liability is predicated solely on the fact that he lent his machine to one whom he knew to be a reckless driver. There is no common-law rule or principle that makes a bailor of an automobile liable to third persons for the negligence of him who borrows it while the thing bailed is under the sole custody and control of the latter, apart from the exceptions noted. Some states, like Michigan, have passed statutes intended to impose liability in cases like that before us. Only in the state of Alabama has the doctrine contended for here by plaintiff been applied. Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N. S.) 87, was a case where the father was held not liable for the injuries to a third person, caused by the negligence of his son while driving the father's automobile. It was held that the mere fact of paternity does not render the father liable for the torts of his minor child, but that, in a proper case, the father would be liable for the negligence of his son, if at the time the son was acting as his agent or servant; but, as that fact did not appear in evidence, the father was exonerated. After having so ruled, the court, by way of illustration, said that liability might arise where an owner intrusted a machine of such dangerous potentialities to the hands of an inexperienced or incompetent person, whether child or servant, but immediately added that no such case was presented by either the pleadings or the evidence. Yet in a subsequent case (Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917E, 380) the same court adopted and applied this dictum of the Parker Case as the law applicable to a state of facts much like those of the instant case.

Daily v. Maxwell, 152 Mo.App. 415, 133 S.W. 351, cited by plaintiff as announcing the Alabama doctrine, clearly falls within one or more of the exceptions to the general rule, because the infant son, to whom the owner of the car intrusted it, was at the time of the injury to the third person using the car as a member of his father's family, and the use he was making of it was one of the very uses for which the...