Syah v. Johnson

• Decision Date: 30 December 1966
• Citation: 55 Cal.Rptr. 741,247 Cal.App.2d 534
• Court: California Court of Appeals Court of Appeals
• Parties: Jullette SYAH et al., Plaintiffs and Respondents, v. Clyde JOHNSON, Richard Johnson, Johnson and Son, a Partnership, Defendants and Appellants. Civ. 8067.

Page 741

55 Cal.Rptr. 741

247 Cal.App.2d 534

Jullette SYAH et al., Plaintiffs and Respondents, v. Clyde JOHNSON, Richard Johnson, Johnson and Son, a Partnership, Defendants and Appellants.

Civ. 8067.

Court of Appeal, Fourth District, Division 2, California.

Dec. 30, 1966.

Rehearing Denied Jan. 16, 1967.

As Modified Jan. 25, 1967.

Hearing Denied Feb. 21, 1967.

[247 Cal.App.2d 536] Joseph W. Jarrett, Frank W. Woodhead and Henry F. Walker, Los Angeles, for defendants and appellants.

Robert A. Neeb, Jr., and Charles L. Crouch, Jr., Beverly Hills, for plaintiffs and respondents.

OPINION

KERRIGAN, Justice.

In early April 1961 defendant, Leslie Richard Hill, was employed by defendants, Clyde Johnson, Richard Johnson, and Johnson and Son, a partnership, as a pickup and delivery man. Approximately three weeks prior to the occurrence of the accident involved in this appeal, Hill, in chauffeuring three customers of his employers, temporarily lost control of the car which he was driving and ran over a curb as a result of a dizzy spell. One of the passengers immediately telephoned the service manager of the car agency owned and operated by defendant-employers, informed the official of the incident, advised Hill had either passed out or was sick, and suggested Hill be medically examined inasmuch as if he continued to drive, the definite danger existed that he would either hurt himself or someone else. Prior to this incident, Hill had struck his head on a door when entering a car and felt a 'hot' sensation in his head, which event was observed by two co-employees. A day or two following the blow on the head, Hill had slipped and fallen at his employers' Lincoln-Mercury Agency, had landed on his back and might possibly have struck his head in falling. The parts manager either saw the fall or saw Hill soon after the latter occurrence.

Later, the parts manager of the agency told the service manager, Mr. Woodard, that Mr. Hill had staggered against the wall going up the stairs at the agency. Subsequently, Mr. Woodard was informed by someone in the shop that Mr. Hill had bumped his head in getting into a Renault.

In any event, the service manager had actual knowledge of at least two of the instances and he informed the agency-owners of at least the one instance where Hill had lost control of the car while transporting business customers.

Following the dizzy spell episode involving the three passengers and the receipt of the telephone call from the customer, the service manager phoned a doctor's office and arranged with the receptionist for an examination of Hill. He did not talk with the doctor directly and did not advise the receptionist that the doctor should determine whether Hill was capable of driving in connection with his employment. The service manager merely requested an appointment for an employee who had sustained a dizzy spell, and Hill was examined by the physician the same afternoon. Hill furnished the doctor with his medical history which may be fairly summarized as indicating the patient had always enjoyed good health generally.

Hill informed the doctor that he had never blacked out previously and explained as much as he could recall concerning the dizzy episode with the passengers. Hill also related to the doctor the fact that his pickup-and-delivery work required him to drive. Apparently the doctor performed a perfunctory examination, advised Hill he could find nothing wrong, released him to return to work, and further suggested that if the feeling of nausea or dizziness recurred, the patient should report back to him. Upon returning to work from the examination, Hill informed the service manager that the doctor had found nothing wrong with him but had suggested he report back in the event he had any further 'spells.' The service manager did not contact the doctor nor did he receive a report from the physician concerning the examination, but dismissed the incident from his mind and allowed Hill to continue his regular duties as a delivery man.

On May 16, 1961, defendant Place left her Lincoln Continental at defendants' Lincoln-Mercury Agency at Newport Beach for the purpose of having a minor repair effected. Defendant Hill drove her to the Irvine County Club located some two miles from Newport Beach where she was to remain while the car was being serviced. Later in the day, at approximately 4:15 p.m., Hill was directed by his employer to return to the country club for the purpose of providing courtesy transportation to Mrs. Place. Upon arriving at the club, Hill continued to drive the owner's Lincoln and intended to return to the car agency so that he could be dropped off and Mrs. Place could then continue home. Driving north on Pacific Coast Highway en route to the car agency, Hill approached the intersection of Jamboree Road where the signal light was red for northbound traffic. However, Hill did not slow down nor stop for the signal but veered suddenly to the right, swerved to the left, proceeded ahead with a 'terrific burst of speed,' and collided with substantial force with a stopped car likewise proceeding in a northerly direction. The decedent, William E. Syah, was a hitchhiker riding in the rear seat of the opposing vehicle and sustained fatal injuries in the accident which culminated in his demise the following day.

The evidence is clear and convincing that Hill 'blacked out' just before the accident as a result of an epileptic seizure.

The plaintiffs initiated this lawsuit in their capacities as the widow and three minor children of the decedent against the defendant-employee, his employers, and the car's owner, Place. Following a jury trial, a verdict was returned in the sum of $30,000 against the employers only and in favor of the defendant-employee (Hill) and the car owner (Place). Judgment was then entered accordingly, and dual motions for judgment notwithstanding the verdict and for new trial were denied. The defendant-employers appeal from the judgment, no cross-appeal having been taken by plaintiffs from the judgment in favor of Hill and Place.

The following grounds are asserted by the employers on their appeal from the judgment: (1) exoneration of the employee of negligence likewise exonerated the employers; (2) insufficiency of evidence to sustain any breach of duty by employers; and (3) excessive damages.

Vicarious liability is not an issue because the defendant Hill was found not to be negligent, and the judgment in favor of Hill has become final. (See Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30; Bell v. Towne, 155 Cal.App.2d 225, 227, 318 P.2d 110.)

The doctrine of 'negligent entrustment' is clearly distinguishable from the theory of 'vicarious liability.' Negligent entrustment is a common law liability doctrine. (Jones v. Ayers, 212 Cal.App.2d 646, 655, 28 Cal.Rptr. 223.) Conversely, the obligation of a lending owner of an automobile is one of statutory liability. (Jones v. Ayers, supra.) An owner of an automobile may be independently negligent in entrusting it to an incompetent driver. (Nault v. Smith, 194 Cal.App.2d 257, 268--272, 14 Cal.Rptr. 889.) California is one of several states which recognizes the liability of an automobile owner who has entrusted a car to an incompetent, reckless, or inexperienced Driver, and has supplemented the common law doctrine of negligent entrustment by enactment of a specific consent statute. (See 163 A.L.R. 1418; Veh.Code, §§ 17150--17157.)

Likewise, where a vehicle owner negligently entrusts his vehicle to another with knowledge that the Vehicle is defective, such owner may be held liable even in the absence of negligent conduct on the part of the driver. (Benton v. Sloss, 38 Cal.2d 399, 405, 240 P.2d 575.)

Similarly, foreign jurisdictions have given favorable sanction to the common law doctrine of negligent entrustment. (See McGowin v. Howard (1948) 251 Ala. 204, 36 So.2d 323, 324, and cases cited, rhg. den.; Vaughan v. Butler (1961) 103 Ga.App. 884, 121 S.E.2d 72, 75, rhg. den.; Rice v. Spencer (1963) 43 Misc.2d 331, 250 N.Y.S.2d 620, 621--622.)

'It is generally recognized that one who places or entrusts his motor vehicle in the hands of one whom he knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness * * *.

'Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner.' (5A Am.Jur., Automobiles and Highway Traffic, § 580, pp. 590--591; see also 8 Am.Jur.2d Automobiles and Highway Traffic, §§ 561, 573; 60 C.J.S. Motor Vehicles § 431.)

Under the theory of 'negligent entrustment,' liability is imposed on vehicle owner or permitter because of his own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was proximately caused by the driver's incompetency. Thus, in Nault v. Smith, supra, 194 Cal.App.2d 257, 14 Cal.Rptr. 889, plaintiff was injured while riding with the daughter of the defendant-parent. The daughter did not have a driver's license but the mother permitted her to drive the vehicle accompanied by plaintiff. One cause of action charged the mother with negligent entrustment for allowing her unlicensed minor daughter to drive the automobile. The defendants-mother and daughter attempted to shield themselves from liability under the guest statute. In the court's opinion, Justice Tobriner reasoned that the defendant-mother's liability was not predicated upon the...