WILLIAM P. LUTFY and JAMES LUTFY, Appellants,
SADIE M. LOCKHART, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed in part and reversed in part, with directions.
Mr. Charles H. Young and Mr. Isaac Barth, for Appellants.
Messrs. Armstrong, Lewis & Kramer, for Appellee.
[37 Ariz. 489] ROSS, J.
This is an action for damages for personal injuries suffered by plaintiff, Sadie M. Lockhart, by being struck by an automobile operated by William P. Lutfy, but owned by his brother, James Lutfy. The accident occurred at the southeast corner of Adams and Second Streets, in a congested part of the city of Phoenix, wherein automobiles are prohibited by ordinance from driving at a rate of speed exceeding fifteen miles.
In substance, the complaint alleges the violation of said ordinance and that William P. Lutfy was incompetent to drive an automobile, for the reason that he was afflicted with defective vision of such a nature as to make it impossible for him to observe [37 Ariz. 490] people approaching him at an angle, and for the reason that he was not licensed to drive an automobile, all of which James Lutfy well knew; that William was using the automobile with the owner's knowledge and consent; that he was driving at the time of the accident "in a wilfully wanton and negligent manner," in that he was driving at a rate of speed in excess of thirty-five miles per hour, a speed greater than was reasonable and proper having due regard to the life and limb of persons traveling on said streets; and that, while defendant was so driving, he ran into plaintiff, who was at the time walking across Second Street at its intersection with Adams Street, throwing her violently against the pavement, etc.
William P. Lutfy in his answer admitted the accident and the injury, but alleged that they were sustained by plaintiff "solely as the result of her own lack of care and negligence." He denied that he was negligent.
James Lutfy demurred to the complaint on the ground of insufficient facts; admitted that he owned the automobile and had loaned it to his brother; denied that William's vision was defective, or that he knew he was not licensed to drive; also denied that the automobile was being used for his benefit.
The case was tried to the jury and resulted in a verdict against both defendants in the sum of $5,000. Defendants appeal.
There are many assignments of error. It is first contended that the demurrer of James Lutfy should have been sustained on the ground that the facts pleaded did not state a cause of action against him. The complaint, so far as this defendant is concerned, seems to be drawn on two theories of liability: One on the theory of principal and agent or master and servant; and the other on the theory that one lending his automobile to another, whom he knows to be a [37 Ariz. 491] reckless or incompetent driver, is a participant in any negligence of the latter, and is equally liable with him for any tort committed.
It is averred that James was the owner of the car. It is settled in this jurisdiction that proof of ownership of an automobile causing an injury is prima facie evidence that the driver is the servant or agent of the owner and using it in the latter's business. Baker v. Maseeh, 20 Ariz. 201, 179 P. 53.
The trend of authority is that the owner of an automobile, who lends it to a person known to him to be habitually reckless, or inexperienced or incompetent as a driver, may be liable for the latter's tort. The liability in such case does not rest upon ownership or agency, but upon the combined negligence of the owner and the driver, the owner's negligence consisting in the act of loaning the car to an incompetent driver, and the latter's in its operation. Elliott v. Harding, 107 Ohio St. 501, 36 A.L.R. 1128, 140 N.E. 338; Rush v. McDonnell, 214 Ala. 47, 106 So. 175; Crowell v. Duncan, 145 Va. 489, 50 A.L.R. 1425, 134 S.E. 576; Wilcox v. Wunderlich, (Utah) 272 P. 207; Hopkins v. Droppers, 184 Wis. 400, 36 A.L.R. 1156, 198 N.W. 738. We think the allegation that defendant William was incompetent to drive by reason of defective eyesight, and that defendant James knew it, stated a cause of action as against a general demurrer. This defendant, at the close of the case, made a motion for an instructed verdict on the ground of failure of evidence and we think it should have been granted. The plaintiff realizing, as she must, that the presumption of agency, through the relation of master and servant, had been overcome, states in her brief that "this case was not tried on any of these theories." And again she states "that there is no question of principal and agent in this case." All the evidence was to the [37 Ariz. 492] effect that William Lutfy was using the automobile for his own personal benefit and not under the direction or for the benefit of James. The court's instruction submitting the question of agency or master and servant was error. The presumption of law, that the driver of the car was in the employ of the owner, was definitely, positively and conclusively overcome by the defendants' evidence. This presumption was rebuttable. Baker v. Maseeh, supra; Otero v. Soto, 34 Ariz. 87, 267 P. 947.
The liability of defendant James for the negligence of defendant William, on the theory that the latter was to the knowledge of James an unsafe driver because of defective or poor vision, was not noticed by the court in the instructions. Plaintiff made no request for an instruction on that theory of liability. The only evidence as to William's vision was brought out on his cross-examination. He stated that he was ...