Robinson v. Pollard

• Citation: 131 Ga.App. 105,205 S.E.2d 86
• Decision Date: 30 January 1974
• Docket Number: No. 48618,3,Nos. 1,2,48618,s. 1
• Parties: Henry F. ROBINSON v. William POLLARD et al
• Court: United States Court of Appeals (Georgia)

Page 86

205 S.E.2d 86

131 Ga.App. 105

Henry F. ROBINSON v. William POLLARD et al.

No. 48618.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 30, 1974.

Rehearing Denied March 5, 1974.

Webb, Parker, Young & Ferguson, Thomas L. Murphy, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Charles E. Walker, Palmer H. Ansley, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by Robinson, plaintiff below, from a summary judgment holding no legal ability upon defendant Pollard who was the owner of a large truck which had been driven into the rear of plaintiff's car. The defense accepted by the court below was that the truck was at the time being driven by an individual named Porter, a total stranger to defendant, not an employee, and thus not authorized to have possession of the truck.

Plaintiff seeks to hold Pollard liable on the basis of 'special circumstances.' In doing so reliance is placed upon an allegation that the truck was left at a service station in a high crime area in Atlanta with the keys remaining in the ignition, this having been done by an employee named Bowden. Claiming Bowden had a propensity for imbibing alcohol in excess, particularly on week-ends, there is an additional theory of 'negligent entrustment.'

At the date of the occurrence Pollard had been engaged for approximately 5 1/2 years in operating a business known as City Van Service. He owned six trucks and had five employees including Bowden. He had rented the premises at the corner of Simpson and West Lake Drive in Atlanta, to provide a location for parking his trucks and where mechanical repairs could be made. This location was near both his residence and that of Bowden. Around 7 a.m. on Saturday morning September 9, 1972, Bowden, who was entrusted with the keys to the large Mack truck he operated, undertook to warm-up the motor so that the truck would be ready for use if needed. Around 7:15 a.m. Pollard informed him that the truck would not be used that day. Both Pollard and Bowden departed from the scene. Apparently the ignition keys were not removed. Around 1 p.m. that afternoon a collision occurred between plaintiff's automobile and Pollard's truck. It was then being driven by Porter but it is not clear as to how he came into possession of the truck. In any event, he was not authorized to use it and he was in no way connected with the owner of the truck.

1. Appellant seeks to establish liability on the truck owner by averring a legal theory of 'special circumstances.' In doing so reliance is placed upon the California case of Hergenrether v. East, 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164, which has a factual basis somewhat similar to the case at bar in that a truck had been parked on the street in a skid-row neighborhood with the key left in the ignition. The California court held that in view of the 'special circumstances' the manner of foreseeability and negligence was for the jury to determine. This California case is contrary to the overwhelming majority ¹ view as noted in 51 A.L.R.2d 633 where the annotation points out that in most jurisdictions a third party cannot recover from the owner or operator who leaves keys in an ignition in the absence of a statute obligating the motorist to remove his keys from the ignition when leaving his car unattended on a public street.

Although the California court ruled there were 'special circumstances' it should be noted in that case that the vehicle was left on the street. In the instant case the vehicle was left on private property at a service station. This business establishment was convenient for the owner and his employee as they resided in the neighborhood. Even if the employee had left the ignition keys in this big truck at 7:15 a.m. it was not foreseeable that five hours later this large vehicle would be taken from private property by a party who had no relationship of any kind with the owner.

Additionally, mere ownership of a motor vehicle does not create liability upon the owner. Price v. Star Service & Petroleum Corp., 119 Ga.App. 171(4), 166 S.E.2d 593; Finnocchio v. Lunsford, 129 Ga.App. 694, 695, 201 S.E.2d 1. Nor can we accept appellant's theory that a large diesel truck should be regarded as a dangerous instrumentality in the light of our many decisions refusing to hold a motor vehicle to be in this category as exemplified by the early case of Fielder v. Davison, 139 Ga. 509, 77 S.E. 618, and subsequent cases appearing in Shepard's Citations.

In two Georgia cases wherein this court has been called upon to decide this question concerning ignition keys we have held there is no liability arising from the fact of keys being left in a car. In Roach v. Dozier, 97 Ga.App. 568, 103 S.E.2d 691, plaintiff sought to hold a defendant, whose nephew had taken the family business funeral hearse, liable under the attractive nuisance doctrine. This court rejected the concept that the hearse could come within the attractive nuisance doctrine and ruled there was no liability. The court added that even if the defendant had constructive notice of previous 'joy rides' by the nephew he could not have breached his duty of ordinary care by leaving the keys in the ignition. The defendant could only have been found negligent if he possessed actual knowledge that his nephew previously used the hearse.

In Chester v. Evans, 115 Ga.App. 46, 153 S.E.2d 583, this court ruled no liability could be imposed upon a father for leaving the keys in his automobile which was being driven by his 13 year old son at the time of the accident in the absence of an allegation that his son had previously disobeyed his instructions not to drive the car. It should be noted that in the case sub judice there is no showing of any prior practice of keys being left in the truck nor of any previous conduct of the type plaintiff has complained of so as to create a reasonable foreseeability that the large truck was likely to be stolen from the service station.

2. The case which we regard as controlling upon the case at bar is Brown v. Sheffield, 121 Ga.App. 383, 173 S.E.2d 891. We quote applicable portions of headnotes 1, 2 and 3 as being dispositive of this case: '1. The owner of a vehicle is not liable under the doctrine of respondeat superior for injuries inflicted by negligence of the operator while it was being operated on a mission purely personal to the operator. 2. (a) Unless it appears that the owner had actual knowledge of the operator's incompetency as a driver there is no liability on the owner's part on the theory of negligent entrustment. . . . 3. (a) When one drives the vehicle of another contrary to the owner's express instructions not to do so, and without the knowledge or consent of the owner, there is no entrustment of the vehicle to the driver, and the owner can not be held on the theory of negligent entrustment.' Here Bowden had received specific instructions from Pollard that the vehicle was not to be used for personal matters and that under no circumstances was he to allow any other person to operate his equipment.

3. Since the record discloses the absence of a legal right of recovery against the truck owner the grant of a summary judgment to defendant Pollard by the trial court was correct. Plywood Supply Co. v. Allrid, 119 Ga.App. 182, 166 S.E.2d 401 and Crawford v. McDonald, 125 Ga.App. 289, 293, 187 S.E.2d 542.

Judgment affirmed.

BELL, C.J., HALL and EBERHARDT, P. JJ., and QUILLIAN and STOLZ, JJ., concur.

PANNELL, J., concurs in the judgment only.

DEEN and EVANS, JJ., dissent.

DEEN, Judge (dissenting).

Construing the affidavits, depositions, etc., along with the pleadings on motion for summary judgment of the defendant in favor of the party opposing the motion, we have the following facts and permissible inferences: Pollard ran his business on a corner lot near his home, near the home of his employee Bowden, and across the street from a liquor store. Bowden customarily drank heavily on weekends. The employees normally did not work on weekends, but it was a custom for some of the employees and others in the neighborhood to congregate at this place on Saturdays to talk and drink. Bowden did not know whether Pollard actually knew this was going on or not, but the plaintiff's position is that he had either actual or constructive knowledge. Bowden was instructed by his employer Pollard to report one Saturday morning as there might be some hauling. Pollard had entrusted Bowden with the keys to the truck. Bowden, arriving early with the keys in his pocket, 'warmed up' the motor. Pollard, arriving, told him there would be no work after all, and Pollard went away. Bowden is not sure whether at this time he left the keys in the truck or not, but he does swear that within the next few hours some of the habitues arived, he stayed on, they got liquor from the liquor store and proceeded to get drunk, and then the employee Bowden and his friend drove away together in the truck. Bowden had been instructed not to let anybody else drive the truck, so in this act he was both disobeying orders and was not in the course of his employment. Apparently he customarily had control of this truck. One inference from the evidence arising from the fact that Porter, immediately after the wreck, informed questioners of the house where Bowden could be found, is that Bowden, who does not remember how he got there, was dead drunk and Porter drove him to the house and left him there. This amounts to a conversion on the part of Porter, who then drove away, but there is no clear inference as to any intent to steal. Porter then negligently collided with the plaintiff's vehicle.

The case does not hinge on whether or not Porter was a thief, but on whether or not Pollard negligently entrusted the vehicle and keys to Bowden over the weekend when he knew or should have known that Bowden drank heavily over the weekend and when he was drunk was likely to be unreliable....