Rodgers v. McFarland

• Decision Date: 23 March 1966
• Docket Number: No. 5736,5736
• Citation: 402 S.W.2d 208
• Parties: Bobbie Wayne RODGERS and Patsy Willingham, Appellants, v. Bernard Luke McFARLAND, Jr., and Graystone Associates, Inc., Appellees.
• Court: Texas Court of Appeals

Page 208

402 S.W.2d 208

Bobbie Wayne RODGERS and Patsy Willingham, Appellants, v. Bernard Luke McFARLAND, Jr., and Graystone Associates, Inc. Appellees.

No. 5736.

Court of Civil Appeals of Texas El Paso.

March 23, 1966.

Rehearing Denied April 27, 1966.

John J. Watts, Odessa, for appellants.

Albert P. Smith, Lubbock, Grover Stephens, El Paso, Royce A. Oxford, Del City, for appellees.

PRESLAR, District Judge.

This is a common-law damage suit brought by Bobbie Wayne Rodgers and Patsy Willingham against Luke McFarland, Jr., the driver of the car in which they were riding, and the lender of the car, Graystone Associates, Inc. On the basis of jury answers to special issues, a take-nothing judgment was entered from which plaintiffs appeal. We affirm.

Plaintiffs and driver McFarland were on a trip from Midland to El Paso, Texas, and were injured when the car driven by McFarland collided with another. The jury found McFarland guilty of several acts of negligence proximately causing the collision, but it found that such acts were not done with a heedless and reckless disregard of the rights of plaintiffs within the meaning of the 'guest' statute, Article 6701b. It was found that plaintiffs were guests of the driver; hence, the take-nothing judgment, because of the requirements of our guest statute which absolves a driver of liability to his guests unless his conduct amounts to a heedless and reckless disregard for the rights of his guests. Plaintiffs sought recovery against Graystone Associates, Inc. on the theory of negligent entrustment, alleging that the driver was incompetent and had a long list of traffic violations, which incompetence and violations were known to Graystone, or in the exercise of ordinary care should have been known to it. It was alleged that the conduct of Graystone in entrusting the car amounted to both ordinary negligence and gross negligence--heedless and reckless disregard of the rights of the plaintiffs. Plaintiffs sought exemplary damages from both the driver, McFarland, and the owner, Graystone.

Before the case went to trial, Graystone filed a motion in limine to suppress evidence as to McFarland's driving record, and in such motion Graystone stipulated and agreed that it would be liable to the same effect and extent that the verdict established the liability of McFarland; that if the verdict established liability against McFarland for damages to either of the plaintiffs, then Graystone would be jointly and severally liable to the same extent and degree, including exemplary damages.

Plaintiffs opposed the motion in limine and assign as error the refusal of the trial court to permit the introduction into evidence of the driving record of McFarland. Under this assignment of error, plaintiffs maintain that they were deprived of a ground of recovery--the independent negligence of Graystone. They urge the proposition that such owner is not entitled to the protection of the guest statute; that having entrusted the car to an incompetent driver, it is responsible for his ordinary negligence; and they urge that their pleading of gross negligence on the part of Graystone entitled them to place in evidence the driving record of the driver on that issue, and a finding of gross negligence against the owner would satisfy the requirements of the guest statute.

We see no error in the court's excluding the driving record. It would have been admissible on the issue of negligent entrustment, to establish the liability of the owner for the acts of the driver, but it became immaterial on that issue when the owner admitted liability. Public policy would not permit forcing the parties to try an issue where none existed. The doctrine of negligent entrustment is that the owner of a vehicle who knowingly turns it over to an incompetent driver is liable for wrong committed by such driver. It differs from master-servant or agency relationship, for it is founded in tort--the negligence of the owner in turning the incompetent loose on the public. If, in fact, the owner is negligent, his liability for the acts of the driver is established, and the degree of negligence of the owner would be of no consequence. Thus, in the case before us, the allegation of the owner's gross negligence is no more material than the allegation of his ordinary negligence in the face of his admission of liability for the acts of the driver. In McIntire v. Sellers, 311 S.W.2d 886 (err. ref., n.r.e.), it was contended that an issue of proximate cause should have been submitted along with the issue of the owner's negligence in entrusting, and the court said:

'We do not believe that it was necessary to submit an issue of 'proximate cause' insofar as concerned the owner's negligence in entrusting the automobile to an unlicensed driver. In the Spratling case the Supreme Court quoted from the Mundy case (Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587) as follows (Spratling v. Butler, 150 Tex. 369, 240 S.W.2d 1017):

"If, after the automobile is entrusted to such driver, he operates it negligently, and thereby causes damages to a third person, the causal connection is shown between the negligence of the owner in lending him the automobile and the damage to the third person."

Obviously, an owner who is negligent in entrusting his vehicle is not liable for such negligence until some wrong is committed by the one to whom it is entrusted. Even if the owner's negligence in permitting the driving were gross, it would not be actionable if the driver...