Thomasson v. Winsett, 7627

• Decision Date: 21 January 1958
• Docket Number: No. 7627,7627
• Parties: Fern THOMASSON, Plaintiff-Respondent, v. Deso WINSETT, Administrator, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 33

310 S.W.2d 33

Fern THOMASSON, Plaintiff-Respondent, v. Deso WINSETT, Administrator, Defendant-Appellant.

No. 7627.

Springfield Court of Appeals, Missouri.

Jan. 21, 1958.

On Motion for Rehearing Feb. 13, 1958.

Finch, Finch, & Knehans, Jack O. Knehans, James A. Cochrane, Jr., Cape Girardeau, for defendant-appellant.

Strom & Strom, Elmer A. Strom, Cape Girardeau, for plaintiff-respondent.

RUARK, Judge.

Jefferson Parker Thomasson was killed in a one-car automobile accident on January 22, 1955. Since the witnesses refer to him as Jeff, we will for convenience and brevity use that name. The plaintiff, who is mother of Jeff, recovered judgment against the estate of John Winsett, who was also killed in the accident.

The petition pleads that Jeff was born March 26, 1939, (thus making him a few days less than fifteen years and ten months old at the date of his death); that John Winsett was the owner of a Dodge automobile and did on various occasions prior to the accident permit Jeff to drive such car; that Jeff was under sixteen, unlicensed, immature, untrained, and inexperienced, all of which was known to Winsett; that on the evening before the accident Winsett was drinking and that he willfully, wrongfully, and intentionally, and in wanton and reckless disregard of duty, did request or permit Jeff to drive the car, which left the road at a rapid rate of speed and struck a culvert; and both Jeff and Winsett were killed. The petition then charges that the death of Jeff was due to the wanton, willful, and reckless acts of Winsett in permitting Jeff to drive.

The facts are: On the evening in question Jeff and a friend, a youth named Gerald Englehart, met in Lutesville. Deceased John Winsett was in town, and they met him on the street. There ensued some talk between the two boys and Winsett, and apparently as a result of that conversation the boys, in Gerald's pickup, followed Winsett to a tavern-restaurant at Marble Hill, where the three stayed for about an hour. Winsett was drinking; in fact, he was intoxicated, but there is no evidence that the two boys did any drinking at that time. It was then decided that they would drive around. Gerald took his father's pickup home. Winsett climbed in the back seat of his own car and gave his keys to Jeff, who drove for the rest of the evening. Jeff, with Winsett in the back seat, first picked up Gerald at his home, and the trio, with Jeff driving, Gerald on the seat beside him and Winsett in the back seat, started first to Cape Girardeau; but the plans were changed and they decided to go to Mutt's Place, a truck stop in Advance, which is about sixteen miles from Lutesville, and 'it didn't make any difference to him [Winsett].' On the way to Advance the car stopped once and Winsett got out and 'throwed up some' and got back in the car. Before they reached Mutt's Place Winsett went to sleep, or surrendered consciousness, in the rear seat of his car and so remained for the remainder of the evening and until he was killed. Thy arrived at Mutt's Place at 10:30 or 11:00. There the two boys met Jeff's older brother Wayne and a friend Sonny Schrock, who were eating. The four of them struck up some talk about going to St. Louis. While they were at Mutt's Place the boys went to the Schrock car and drank 'a can of beer.' After remaining at Mutt's Place for awhile Jeff drove the Winsett car back to the Thomasson (Jeff's) house in Lutesville, and the two boys went in for awhile. The purpose of stopping at Jeff's home was that the boys were planning to go to St. Louis with Wayne and Sonny and 'we were scared they would come in and we couldn't catch them in time and afraid they might not or couldn't find us.' The boys then drove to what is called the Leopold Junction, which is three or four miles from Lutesville, and parked the car to wait for Wayne and Sonny. It was then a little after midnight and Winsett was still 'out' in the back seat.

At about 2:00 a. m. Wayne and Sonny came from the direction of Advance, driving at a rate of about sixty m. p. h. Jeff pulled out and followed them for about a mile and a half. The cars started up a hill and Jeff decided to pass. He speeded up to what Gerald says was around eighty-five m. p. h. and went around, Wayne and Sonny, in the lead car, having allowed room on the left for him to do so. The passing was accomplished just after the cars had gone over the crest of the hill. From there the road was downhill with a gradual curve to the right. Just after it had passed the Schrock car, a left wheel of the car Jeff was driving went off the blacktop. He attempted to straighten the car out and get it back on the pavement but was unable to do so, and in the space of a pulse beat this swiftly moving carriage became a snarling chariot of death carrying two mortals into oblivion. It went down the ditch and struck a culvert in a 'swag'; the occupants were thrown out. Winsett was killed instantly, and Jeff expired a short time later.

Plaintiff's instruction 1 submitted the proposition that Winsett intentionally permitted Jeff to drive when Jeff was under the age of sixteen and not the holder of a driver's license, when such (age and lack of license) was known to John Winsett; that Jeff was incompetent to drive the car; and that Winsett's acts were willful, wanton, and reckless, which terms were defined in the instruction. The jury returned a verdict for $5314.

The first and principal question is whether plaintiff made a submissible case of willful and wanton negligence.

Ordinarily an owner who surrenders his property to another is not liable for the acts of the bailee in his use of such property. An exception to this is that where one entrusts a dangerous instrumentality to an incompetent, inexperienced, or reckless person the bailor may become liable upon the theory that his misconduct or negligence in so entrusting the dangerous instrumentality combines with the misconduct or negligence of the bailee to produce the injury. An automobile is not a dangerous instrumentality as such, but it can become so when placed in the hands of an incompetent, inexperienced, or reckless person. ¹

Under section 302.060 RSMo 1949, V.A.M.S., no license shall be issued to an operator under sixteen years old, and under section 302.260, no person shall authorize or knowlingly permit a motor vehicle to be driven in violation of the preceding sections. These statutes are for the protection of the public [Dinger v. Burnham, 360 Mo. 465, 228 S.W.2d 696(6)], and a person under sixteen years of age must be taken as incompetent as a matter of law. Therefore, the person who 'knowingly permits such driving by a person under the age of sixteen is negligent as a matter of law. ²

In determining the question of simple negligence in entrusting an automobile to an incompetent or inexperienced person, considerable authority, including Missouri, holds that in order to charge the owner with such negligence there must be some knowledge of the incompetency, or circumstances which would provoke inquiry and investigation by a reasonable person.

Thus in Saunders v. Prue, 235 Mo.App. 1245, 151 S.W.2d 478, it was held that knowledge of the incompetency was a necessary link in the chain of liability and that one turning an automobile over to another was ot charged with the duty to make investigation as to competency in the absence of some circumstance which would put a reasonable man on the alert.

In Lix v. Gastian, Mo.App., 261 S.W.2d 497, it is said, loc. cit. 500:

'The general rule is that the owner of an automobile is under a duty not to place the automobile in the hands of a person whom he knows, or in the exercise of reasonable diligence could have known, to be an incompetent, careless, reckless, or inexperienced driver.'

And:

'And, the owner's knowledge of the driver's incompetence may be shown either by evidence that he in fact knew of such acts [specific acts of recklessness], or by evidence that the driver's incompetence was generally known in the community.' ³

As to whether the owner, in letting his car to a person under sixteen years of age, can be charged with knowledge of incompetency on the theory that the statutes before mentioned create a positive duty to know, the Missouri courts have not found it necessary to say, because in each of the cases which declared that liability existed, knowledge was necessarily assumed from the circumstances. Without attempting to decide that question here, we do say it might well be that a person could be guilty of simple negigence and therefore be responsible for all of the injuries which flowed in natural sequence from his act, because of his failure to take into account the age of a driver, and yet not be guilty of conduct which was willful, wrongful, intentional, wanton, and reckless (which is the theory pleaded, tried, and submitted in this case) in turning the car over to an under-age driver. ⁴ Violation of a statute might be proof of negligence, yet not necessarily proof of wantonness. ⁵

The courts have attempted many times to define willful and wanton and reckless conduct. In Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570, at loc. cit. 573, it is said:

'Negligence is one kind of tort, an unintentional injury usually predicated upon failure to observe a prescribed standard of care (52 Am.Jur., Sec. 20) while a willful, wanton, reckless injury is another kind of tort, an intentional injury often based upon an act done in utter disregard of the consequences. 52 Am.Jur., Secs. 22, 23; 38 Am.Jur., Secs. 4, 5. Reckless conduct may be negligent in that it is unreasonable but it is an must be something more than unreasonable, 'it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent.' 2 Restatement, Torts, p. 1294. 'The actor's (defendant's) conduct is in reckless disregard of the safety of another if he intentionally does an act * * * knowing or having reason...