Stewart, Milliken and Duncan, JJ., dissenting.
STANLEY, Commissioner. The case is of first impression in this court. The question is whether a parent who purchased an automobile for an adult son, known by her to be an inebriate and drug addict, may be held answerable in damages to a third person injured by the son's negligent operation of the car. The claim of liability is predicated upon the principle of legal responsibility for entrusting an automobile, as a potentially dangerous instrumentality, to an incompetent driver.
The petition against the appellee, Mrs. Wade H. Gibson, and her son, Wm. P. Tinsley, charges that he negligently ran the automobile into a gasoline pump and caused an explosion which showered the plaintiff, Charles Estes, with burning gasoline and severely injured him. The plea of negligence of the mother is stated in summary. Having knowledge, actual or constructive, that her son 'by reason of his physical and mental condition and by reason of his habits of insobriety and his addiction to the use of hypnotic drugs and narcotics was * * * a careless, reckless and incompetent operator of any motor vehicle', the mother 'carelessly and negligently purchased for and placed in the possession of her said son and co-defendant herein, William Percival Tinsley, the automobile and permitted and allowed him to operate the same.' The title to the automobile was in the son.
Mrs. Gibson's demurrer to the petition was sustained and it was dismissed as to her and the appeal prosecuted.
The legal principle relied upon by the appellant is thus stated in Restatement of the Law of Torts, Volume 2, Sec. 390:
'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.'
Comment b. notes the analogy to as well as the distinction between this and Sec. 307, which deals with the use of an instrumentality which is known or should be known to be dangerously improper for the use to which it is put, while this Sec. 390 deals with supplying a chattel to a person incompetent to use it safely, irrespective of whether the chattel is to be used for the supplier's purposes or for the purpose of him to whom it is supplied. It is further noted that in either case 'the actor may not assume that human beings will conduct themselves properly if the facts which are known or should be known to him should make him realize that they are unlikely to do so.' And in Comment c. it is stated that if 'the person to whom the chattel is supplied is one of a class which is legally recognized as so incompetent as to prevent them from being responsible for their actions, the supplier may be liable for harm suffered by him, as when a loaded gun is entrusted to a child of tender years.' However, the various explanatory illustrations show the broad and abstract statement of the rule has its limitations. The illustrations are confined to cases of agency and bailment, as by permitting the use of, lending or hiring an automobile or other potential or inherently dangerous instrumentality.
Our cases with respect to liability under such circumstances or relationships for injuries naturally and probably resulting from negligence of an intoxicated or otherwise unfit driver of an automobile are in accord. Consistent with the rule and reasoning of the decisions generally, our opinions rest upon the combined negligence of the owner or controller in furnishing or entrusting the machine to a known incompetent or incapable driver and of the driver in its operation, and do not rest upon any imputation of negligence. Saunders Drive-It-Yourself Co. v. Walker, 215 Ky. 267, 284 S.W. 1088; Brady v. B. & B. Ice Co., 242 Ky. 138, 45 S.W.2d 1051; Sanders v. Lakes, 270 Ky. 98, 109 S.W.2d 36; Owensboro Undertaking & Livery Association v. Henderson, 273 Ky. 112, 115 S.W.2d 563. See also 5 Blashfield, Cyc. of Auto.Law, Secs. 2924, 2927; 4 Berry on Automobiles, Secs. 710, et seq.; 5 Am.Jur. Automobiles, Sec. 355; 60 C.J.S., Motor Vehicles, § 431. The Maryland court has held the rule applicable not only to the owner of an automobile but also to one who has the right to permit or the power to prohibit the use thereof -- a father not having prevented an incapacitated son from driving a car registered in the name of his mother. Rounds v. Phillips, 166 Md. 151, 167, 170 A. 532; second appeal, 168 Md. 120, 177 A. 174. And the Louisiana court held it applicable to a dealer who loaned his dealer's license plates to a buyer of an automobile whom he knew could not drive it, and without which plates the buyer would not have been permitted to operate the car on the street. The dealer was held to be liable for a death resulting from the buyer's negligent operation. Toole v. Morris-Webb Motor Co., La.App., 180 So. 431.
But this case is different. The alleged unfit and negligent driver of the car was the sui juris owner. The relationship of parent and child was but an incidence. 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. We have no statute to that effect, but we do have a statute, KRS 186.590(3) which declares that 'any person who gives or furnishes a motor vehicle' to a minor under eighteen years of age shall be jointly and severally liable with him for damages caused by his negligent driving of the machine. The constitutionality of the original Act was vigorously assailed in Ingram's Adm'r v. Advance Motor Co., 283 Ky. 87, 140 S.W.2d 840, which was an action against a dealer who had sold a car to a fifteen-year-old minor and he had wrecked it and caused the death of his guests. Disposition of the case did not require the court to pass on the constitutionality of the Act, for it was held not to apply to the seller of the automobile. While liability under general tort law appears not to have been directly considered, it was held the petition did not state a cause of action against him. It may be observed that in a case arising after the adoption of the Revised Statutes, the statute was held to cover a garage employer of a seventeen-year old boy who was guilty of negligent operation while testing a car before delivering it to the owner. Falender v. Hankins, 296 Ky. 396, 177 S.W.2d 382. It may be further observed that the same statute, KRS 186.590, and KRS 186.470 qualify the right of a minor under eighteen years of age to have an operator's license, and KRS 186.440(4) denies such license to 'An habitual drunkard or drug addict.' However, in the absence of a plea to the contrary in the present case, we may presume that the defendant's son, Wm. P. Tinsley, had been issued such a driver's license, which would indicate that the state, through its officers, sanctioned his ownership and right to drive the automobile involved.
We consider cases from other jurisdictions.
In a memorandum opinion, an intermediate court of New York ruled that a complaint against a father alleging that he had bought an automobile for his adult son whom the father knew to be an epileptic, stated a cause of action for damages resulting from his wrecking the car when he had an epileptic fit. The sole authority cited, and that without comment, is Sec. 390 of the Restatement of the Law of Torts, which we have quoted above. Golembe v. Blumberg, 262 App.Div. 759, 27 N.Y.S.2d 692. And a trial court following that case held a complaint against a father who had given an automobile or funds with which to purchase it to a son known by him to have reckless, dangerous and wanton habits and a tendency to overindulge in intoxicating liquors, stated facts sufficient to constitute a cause of action. Bugle v. McMahon, Sup., 35 N.Y.S.2d 193. But the Appellate Division reversed the decision and held the complaint was not sufficient because it failed to allege any causal connection between the accident and any act or conduct of the father, and, furthermore, that the act of the father was as consistent with non-liability as with liability. Bugle v. McMahon, 265 App.Div. 830, 37 N.Y.S.2d 540.
Closest in point of fact and of law is Shipp v. Davis, 25 Ala.App. 104, 141 So. 366, 367. A father bought an automobile and gave it to his son, who was over twenty-one years old, knowing at the time that his son used intoxicating liquors to excess. It was sought to hold the father liable for damages resulting from the son's negligence in operating the car. The court held there was no liability on the part of the father. Its pertinence justifies extended quotation from the opinion.
'In the absence of an allegation of relationship constituting a legal control of Jack Shipp by Dr. M. G. Shipp, so as to bring into action the doctrine of respondeat superior or the maxim qui facit per allium facit per se at the time of the accident, Jack Shipp would be liable for his own personal negligence which is the proximate cause of an injury, but the liability would not extend and attach to Dr. M. G. Shipp, who gave him the automobile with a knowledge at the time of the gift that Jack was an incompetent driver, and although he might have known, at the time of the accident complained of, that Jack was still incompetent as a driver. 45 Corpus Juris, 877 (309) A; 42 C.J. 1075, note 26. As was held in Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A.1917F, 380, and in many other cases in this and other states (42 C.J. 614, note 95), automobiles are not classed with dangerous instrumentalities, and, while in the hands of an incompetent driver an automobile may become a dangerous machine and a menace to others, if it should be held that an automobile could not, without assuming liability for negligent or incompetent driving, be sold or given to a person not having sufficient knowledge or training to drive the car, it would be carrying the doctrine of concurrent liability far beyond any decision coming to our knowledge. Whether by a gift or a sale when an automobile is placed in the possession and control of a person, sui juris, ...