Rush v. Smitherman

• Decision Date: 10 October 1956
• Docket Number: No. 13030,13030
• Citation: 294 S.W.2d 873
• Parties: Alberta RUSH et al., Appellants, v. Earl SMITHERMAN et al., Appellees.
• Court: Texas Court of Appeals

Page 873

294 S.W.2d 873

Alberta RUSH et al., Appellants, v. Earl SMITHERMAN et al., Appellees.

No. 13030.

Court of Civil Appeals of Texas, San Antonio.

Oct. 10, 1956.

Rehearing Denied Nov. 7, 1956.

Lloyd & Lloyd, Alice, for appellants.

Perkins, Floyd & Davis, Kenneth Oden, Alice, Blakeley & Williams, Dallas, for appellees.

POPE, Justice.

The question presented by this appeal is whether the law of negligent bailment of motor vehicles to unlicensed drivers should be broadened to embrace a doctrine of negligent sales or contracts to sell new or used cars to unlicensed drivers. The trial court refused to extend the doctrine of negligent entrustment and sustained the defendants' motion for summary judgment.

Plaintiffs are the widow, children and parents of Kelton E. Myers, who was killed in an automobile collision with a car driven by Humberto Munoz. Munoz is not a party to this suit, for he was dismissed before judgment was rendered. They sued Earl Smitherman, individually and d/b/a Smitherman Motor Company and Texas Motor Company, and Joseph W. Spillar, individually and d/b/a Texas Motor Company. Munoz contracted to buy a car from Texas Motor Company. That Company was owned by Earl Smitherman and Joseph W. Spillar. Earl Smitherman was the sole owner of Smitherman Motor Company and Spillar was its manager. The motion for rehearing convinces us that the judgment of the trial court was correct, and we withdraw the former opinion.

Munoz was an employee of Smitherman Motor Company, but plaintiffs make no contention that liability is grounded upon agency. The showing was made by depositions and one affidavit. Rule 166-A, Texas Rules of Civil Procedure. Looking alone to Munoz's deposition, and not to Spillar's, we find certain undisputed facts: A few days before December 12, 1953, Spillar permitted Munoz to drive a Cadillac car home from work. Prior to December 12th, Munoz had no agreement to buy the car, but on that date his relations were altered. Munoz and Spillar then made an agreement under which Munoz became the purchaser of the car. They agreed that Munoz would buy the car for $175. Under their agreement, Munoz was to pay $50 as a down payment and some money every week until the car was paid for. When Munoz received his next pay check, he paid $25 on the car, and agreed that he would pay another $25 out of his next check. That arrangement, as of that time, was entirely agreeable to both the buyer and seller. The parties executed no written agreement, and made no agreement about the time for delivery of the certificate of title. After the agreement between Spillar and Munoz, Munoz had complete control and possession of the vehicle. The seller then lost his control and possession. What was formerly a mere bailment became a firm contract to sell as between the parties. About six days after that relationship was established between the parties Munoz had the accident. He did not have a driver's license. Munoz defaulted on his agreement after the accident date, but on the date of the accident, under his contract with the seller, he and no one else controlled and had the sole right to control the car.

Upon these facts, Munoz made a contract to buy the vehicle and the seller accepted part payment and delivered possession. This was a contract to sell. Alamo Cas. Co. v. William Reeves & Co., Tex.Civ.App., 258 S.W.2d 211, 214; Hicksbaugh Lumber Co. v. Fidelity & Casualty Co. of New York, Tex.Civ.App., 177 S.W.2d 802; Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938, 942. A contract to sell without delivery of the certificate is not illegal as between the parties. Gregory v. Laird, Tex.Civ.App., 212 S.W.2d 193, 195; Hicksbaugh Lumber Company v. Fidelity & Casualty Co., supra; Fulcher v. Hall, Tex.Civ.App., 170 S.W.2d 321.

One who bails his vehicle to an unlicensed driver may be negligent under the doctrine known as negligent entrustment. This is the rule at common law. Note, 168 A.L.R. 1364. It also may be the rule by force of a statute, as in Texas, Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587. The rule of negligent bailments at common law does not embrace sales of vehicles. The Supreme Court in the Munday case states that the Texas rule is in accord with the unanimous holdings in other jurisdictions. Upon inspection, those holdings concern bailments of different kinds. The Restatement applies the rule to those who 'supply' chattels 'for the use' of another. Restatement, Torts, § 390. No mention is made of sellers, and the illustrations are those of bailments only. Texas has not yet adopted the rule that vendors of new and second-hand cars are reached by the rule of negligent bailments.

Courts have consistently refused to impose liability upon a negligent donor for the negligence of the donee and have so refused in cases which, had the transaction been a bailment rather than a gift, would have clearly imposed liability. In Estes v. Gibson, Ky, 257 S.W.2d 604, 606, 36 A.L.R.2d 729, a mother gave an automobile to her adult son addicted to alcohol and drugs. Recognizing the difference between a bailment and a gift the Court said:

'But this case is different. The alleged unfit and negligent driver of the car was the sui juris owner. * * * There was no legal relationship, such as agency, bailment or the like, even in their broadest aspect. The vicarious legal liability of one person for the tortious conduct of another in which the former had no part ordinarily must rest on some such relationship. But this case rests on primary fault in the mother. To place responsibility upon a donor of an automobile to one who may or may not on a particular occasion be incapacitated to drive it could lead to placing such responsibility also upon the seller of a car to such person, or even upon one who sold him the gasoline being used to operate it.'

An effort to extend the doctrine was made in Palmer v. R. S. Evans, Jacksonville, Inc., Fla., 81 So.2d 635, 637, but the Court there stated concerning a conditional sale arrangement:

'In the case at bar, the parties intended to enter, did enter, and ultimately memorialized in writing, a conditional sales contract, in which title was retained by the seller until the completion of payment. Thus legal title to the automobile remained in the seller, R. S. Evans, at the time the accident occurred. But the rationale of our cases which impose tort liability upon the owner of an automobile operated by another * * * would not be served by extending the doctrine to one who holds mere naked legal title as security for payment of the purchase price. In such a title holder, the authority over the use of the vehicle which reposes in the beneficial owner is absent. * * * Moreover, in jurisdictions having statutes making the owner liable for the negligence of another driving his car with his consent, the term 'owner' has been universally construed to eliminate those who hold nothing more than naked legal title. See Craddock v. Bickelhaupt, 227 Iowa 202, 288 N.W. 109, 135 A.L.R. 474, and the cases cited in annotation, 135 A.L.R. 481, 485-486. It is therefore apparent that it was necessary for appellee in the case before us to prove only that the beneficial ownership had passed to Hughes before the accident occurred and, as we have indicated above, the proof was adequate upon this point.'

The rule, as stated, is consistently followed in other jurisdictions. Shipp v. Davis, 25 Ala.App. 104, 141 So. 366; Bugle v. McMahon, 265 App.Div. 830, 37 N.Y.S.2d 540; Dempsey v. Frazier, 119 Miss. 1, 80 So. 341; Gott v. Scott, La.App., 199 So. 460. We conclude that liability for negligently entrusting a vehicle to an unlicensed driver is a part of the law of bailments, but not of the law of sales or gifts. See 6 Am.Jur., Bailments, § 314.

The Texas Statutes have not extended the rule to include sales. Article 6687b, § 36, Vernon's Ann.Civ.Stats., provides that 'No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or in violation of any of the provisions of this Act.' One of the provisions of the act is the requirement that operators have a license. Sec. 2, Art. 6687b. By statute, Texas has stated the general rule. Nothing about the statute indicates that it purposed an extension of that rule. In Mundy v. Pirie-Slaughter Motor Co., supra, (146 Tex. 314, 206 S.W.2d 591), the Court states that the object of the rule was to prevent the 'lending of automobiles to persons not shown by examination and license to be competent to drive'. In Ingram's Adm. v. Advance Motor Co., 283 Ky. 87, 140 S.W.2d 840, 841, a statute imposed liability upon an 'owner'. The title of the act, Acts 1936, 3rd Ex.Sess., c. 13, stated that one of its purposes was to make the "owner liable for negligence of a minor". This language is the closest to that used in the Texas statute we have found. The Court said, 'Neither the title nor the section makes reference to a dealer, or one who sells a motor vehicle.' Thus, the Court refused to extend the tort liability into the field of sales. See Tanies v. Eding, 274 Mich. 288, 264 N.W. 375. Good reason exists for this as appears from the common law rule. A bailor entrusts, for what he entrusts is his. But a vendor does not entrust; he sells his chattel. The statute states that no person 'shall authorize or knowingly permit' certain use of a vehicle. When the accident occurred in this case, Munoz was not driving the vehicle by force of authority or permission from any one. Munoz, when he got in his car to drive, needed no authority or permission from any one. He was driving a car which was his under a contract to buy. So long as he kept his payments in order, and he had up to that time, he, not others, was the one who granted the authority and permission about the car.

Our next inquiry is whether the Certificate of Title Act alters...