Roberts v. Hill, 756

• Decision Date: 04 June 1954
• Docket Number: No. 756,756
• Citation: 240 N.C. 373,82 S.E.2d 373
• Court: North Carolina Supreme Court
• Parties: ROBERTS, v. HILL et al.

Page 373

82 S.E.2d 373

240 N.C. 373

ROBERTS, v. HILL et al.

No. 756

Supreme Court of North Carolina.

June 4, 1954

Johnson & Randolph, Winston-Salem, for plaintiff appellant.

Spry & White, Winston-Salem, for defendant appellees.

BARNHILL, Chief, Justice.

The plaintiff makes no allegation against the defendant Elsie Mae Miller. No reference is made to her in the body of the complaint. Therefore, her name, appearing in the captions of the summons and pleadings as a defendant, is mere surplusage. It should be stricken so as to keep the record straight.

While plaintiff alleges that defendant Foster was an employee of Bobby Hill, he neither alleged in his complaint nor attempted to prove at the trial that Foster, at the time of the collision, was then about his master's business so as to render the defendants, or either of them, liable under the doctrine of respondeat superior for his negligent operation of the Chevrolet.

The plaintiff states in his brief filed in this Court that 'the complaint sets forth a cause of action against the defendant Arthur E. Hill for negligently entrusting to an incompetent person the care and operation of a motor vehicle. The basis of liability of this defendant is not predicated upon the theory of respondeat superior, that is, upon the theory that Foster was the agent of the defendant, Arthur E. Hill. It is based upon the negligent act in entrusting the automobile to one whom the defendant knows, or by the exercise of ordinary care should have known, would be likely to cause injury to others on account of the use of said automobile.'

His counsel made a similar statement in the course of the oral argument in this Court. Thus, it appears that neither the pleadings nor the evidence raises the issue of fact incorporated in the second issue. It should not have been submitted to the jury. Even so, the answer thereto puts at rest the question of the applicability of G. S. § 20-71.1.

Plaintiff's cause of action, as set forth in his complaint, is not bottomed on the master-servant relationship as between Foster and the Hills. It is bottomed on an eitrely different and independent rule of the law of negligence.

Where the owner of an automobile hires or lends it to another, knowing that the latter is an incompetent, careless or reckless driver and likely to cause injury to others in its use, the owner is liable for injuries caused by the borrower's negligence, on the ground of his personal negligence in entrusting the automobile to one who he knows is apt to cause injury to another in its use. Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162.

When the owner of a motor vehicle lets or loans his automobile to a person known to him to be an incompetent, careless or reckless driver, he does so at his own peril and is liable for any resulting injury or damage proximately caused by the negligence of the bailee. Bogen v. Bogen, supra, and cases cited.

Under this doctrine, the liability of the owner of a motor vehicle is made to rest upon proof of (1) ownership of the automobile, (2) the incompetency, or habitual carelessness or recklessness of the bailee to whom its operation is entrusted to operate it properly and safely, (3) the owner's timely knowledge of such incompetency, carelessness or recklesness, and (4) injury to a third person resulting proximately from the negligence, incompetency or recklessness of the bailee. Bogen v. Bogen, supra.

While the party injured must prove that the injuries to his person or damage to his property proximately resulted from the negligence of the bailee-driver, the owner is not held liable under the doctrine of imputed negligence but for his independent and wrongful breach of duty in entrusting his automobile to one who he knows or should know is likely to cause injury. Bogen v. Bogen, supra; Taylor v. Caudle, 210 N.C. 30, 185 S.E. 446; Cook v. Stedman, 210 N.C. 345, 186 S.E. 317; Heath v. Kirkman, 240 N.C. 303, 82 S.E. 2d 104, McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530. Proof of negligence of the bailee-driver merely furnishes the causal connection between the primary negligence of the owner and the injury or damage.

The owner is held liable for his own negligence and not for the negligence of his agent or employee. Hence proof that the employer-employee relationship existed between the owner and the driver at the very time the injuries were inflicted is not required. See Annotations 36 A.L.R. 1148, 68 A.L.R. 1013, and 100 A.L.R. 923.

At the time plaintiff rested his case there was not a scintilla of evidence tending to show that Arthur Hill permitted Foster to use the Chevrolet, or that he had any knowledge of Foster's reputation as a reckless driver and a frequent violator of the motor vehicle traffic laws, or that he is liable under the doctrine of respondeat superior.

But plaintiff earnestly contends that G.S. § 20-71.1 is applicable in a case bottomed on the negligence alleged in the complaint as well as in cases where plaintiff relies on the doctrine of imputed negligence, and that it furnishes the missing link in his evidence. He asserts that the provisions of the Act should be extended to embrace an admitted agent who 'had full custody of the lot' and complete control over the automobiles, including the right to permit others to operate them. In short, he contends that the statute makes out for him a prima facie showing that Foster was operating the Chevrolet at the time of the collision 'with the authority, consent and knowledge of' both of the Hills.

These arguments advanced by counsel for plaintiff evidence a careful study of the Act, G.S. § 20-71.1, in an attempt to give it a sound and logical construction which would embrace an authorized agent within the word 'owner' as used in the Act.

But we find ourselves unable to concur. A careful consideration of the original Act, ch. 494, S.L. 1951 of which G.S. § 20-71.1 is a codification, including its caption, leads us to the conclusion that it was designed and intended to apply, and does apply, only in those cases where the plaintiff seeks to hold an owner liable for the negligence of a nonowner operator under the doctrine of respondeat superior. 'Its purpose is to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the person of another. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309. It does not have, and was not intended to have, any other or further force or effect.' Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767, 772. (Emphasis added.) This language appearing in the Hartley case was used advisedly. We adhere to what is there said.

It is not here alleged that Foster was operating the vehicle 'within the course and scope of his employment'. G.S. § 20-71.1. Hence the statute has no application to the cause of action alleged or to the facts disclosed by this record. The judgment dismissing the action as to Arthur Hill must be affirmed.

There is neither allegation nor evidence that Bobby Hill entrusted the Chevrolet to Foster. It is alleged instead that Arthur Hill as agent of Bobby Hill committed the act of negligence relied on by plaintiff. It was judicially determined in the court below that the evidence offered is not such as would require the submission of any issue of negligence as against Arthur Hill, and we affirm. That being true, there was no negligence on the part of the agent to be imputed to the master or principal.

Here again, however, the plaintiff seeks to invoke the provisions of G.S. § 20-71.1. But the court below set aside the verdict as against Bobby Hill. For that reason the question thus raised is not before us for decision. Even so, we may assume that when this cause comes on for rehearing, the presiding judge will take note of our disposition of the same question raised on the appeal as against Arthur Hill.

The act of negligence alleged by plaintiff under the doctrine of negligence relied on by him is primary and personal to the owner. Whether it may be committed by proxy is likewise a question we must, for the same reason, leave open for decision until it is...