Robinson v. Pollard

205 S.E.2d 86, 131 Ga. App. 105, 1974 Ga. App. LEXIS 1341

• Court: Court of Appeals of Georgia
• Decided: January 30, 1974
• Docket: 48618
• Status: Published

Opinions

Clark, Judge.

This appeal is by Robinson, plaintiff below, from a summary judgment holding no legal liability upon defendant Pollard who was the owner of a large truck which had been driven into the rear of plaintiffs car. The defense accepted by the court below was that the truck was at the time being driven by an individual named Porter, a total stranger to defendant, not an employee, and thus not authorized to have possession of the truck.

Plaintiff seeks to hold Pollard liable on the basis of "special circumstances.” In doing so reliance is placed upon an allegation that the truck was left at a service station in a high crime area in Atlanta with the keys remaining in the ignition, this having been done by an employee named Bowden. Claiming Bowden had a propensity for imbibing alcohol in excess, particularly on week-ends, there is an additional theory of "negligent entrustment.”

At the date of the occurrence Pollard had been engaged for approximately 5 1/2 years in operating a business known as City Van Service. He owned six trucks and had five employees including Bowden. He had rented the premises at the corner of Simpson and West Lake Drive in Atlanta, to provide a location for parking his trucks and where mechanical repairs could be made. This location was near both his residence and that of Bowden. Around 7 a.m. on Saturday morning September 9, 1972, Bowden, who was entrusted with the keys to the large Mack truck he operated, undertook to warm-up the motor so that the truck would be ready for use if needed. Around 7:15 a.m. Pollard informed him that the truck would not be used that day. Both Pollard and Bowden departed from the scene. Apparently the ignition keys were not removed. Around 1 p. m. that afternoon a collision occurred between plaintiffs automobile and Pollard’s truck. It was then being driven by Porter but it is not clear as to how he came into possession of the truck. In any event, he was not authorized to use it and he was in no way connected with the owner of the truck.

1. Appellant seeks to establish liability on the truck owner by averring a legal theory of "special circumstances.” In doing so reliance is placed upon the California case of Hergenrether v. East, 61 Cal. 2d 440 (393 P2d 164) which has a factual basis somewhat similar to the case at bar in that a truck had been parked on the street in a skid-row neighborhood with the key left in the ignition. The California court held that in view of the "special circumstances” the matter of foreseeability and negligence was for the jury to determine. This California case is contrary to the overwhelming majority¹ view as noted in 51 ALR2d 633 where the annotation points out that in most jurisdictions a third party cannot recover from the owner or operator who leaves keys in an ignition in the absence of a statute obligating the motorist to remove his keys from the ignition when leaving his car unattended on a public street.

Although the California court ruled there were "special circumstances” it should be noted in that case that the vehicle was left on the street. In the instant case the vehicle was left on private property at a service station. This business establishment was convenient for the owner and his employee as they resided in the neighborhood. Even if the employee had left the ignition keys in this big truck at 7:15 a.m. it was not foreseeable that five hours later this large vehicle would be taken from private property by a party who had no relationship of any kind with the owner.

Additionally, mere ownership of a motor vehicle does not create liability upon the owner. Price v. Star Service & Petroleum Corp., 119 Ga. App. 171 (4) (166 SE2d 593); Finnocchio v. Lunsford, 129 Ga. App. 694, 695 (201 SE2d 1). Nor can we accept appellant’s theory that a large diesel truck should be regarded as a dangerous instrumentality in the light of our many decisions refusing to hold a motor vehicle to be in this category as exemplified by the early case of Fielder v. Davison, 139 Ga. 509 (77 SE 618) and subsequent cases appearing in Shepard’s Citations.

In two Georgia cases wherein this court has been called upon to decide this question concerning ignition keys we have held there is no liability arising from the fact of keys being left in a car. In Roach v. Dozier, 97 Ga. App. 568 (103 SE2d 691) plaintiff sought to hold a defendant, whose nephew had taken the family business funeral hearse liable under the attractive nuisance doctrine. This court rejected the concept that the hearse could come within the attractive nuisance doctrine and ruled there was no liability. The court added that even if the defendant had constructive notice of previous "joy rides” by the nephew he could not have breached his duty of ordinary care by leaving the keys in the ignition. The defendant could only have been found negligent if he possessed actual knowledge that his nephew previously used the hearse.

In Chester v. Evans, 115 Ga. App. 46 (153 SE2d 583) this court ruled no liability could be imposed upon a father for leaving the keys in his automobile which was being driven by his 13- year-old son at the time of the accident in the absence of an allegation that his son had previously disobeyed his instructions not to drive the car. It should be noted that in the case sub judice there is no showing of any prior practice of keys being left in the truck nor of any previous conduct of the type plaintiffhas complained of so as to create a reasonable foreseeability that the large truck was likely to be stolen from the service station.

Argued September 17, 1973 Decided January 30, 1974 Rehearing denied March 5, 1974

2. The case which we regard as controlling upon the case at bar is Brown v. Sheffield, 121 Ga. App. 383 (173 SE2d 891). We quote applicable portions of headnotes 1, 2 and 3 as being dispositive of this case: "1. The owner of a vehicle is not liable under the doctrine of respondeat superior for injuries inflicted by negligence of the operator while it was being operated on a mission purely personal to the operator. 2. (a) Unless it appears that the owner had actual knowledge of the operator’s incompetency as a driver there is no liability on the owner’s part on the theory of negligent entrustment. . . 3. (a) When one drives the vehicle of another contrary to the owner’s express instructions not to do so, and without the knowledge or consent of the owner, there is no entrustment of the vehicle to the driver, and the owner can not be held on the theory of negligent entrustment.” Here Bowden had received specific instructions from Pollard that the vehicle was not to be used for personal matters and that under no circumstances was he to allow any other person to operate his equipment.

3. Since the record discloses the absence of a legal right of recovery against the truck owner the grant of a summary judgment to defendant Pollard by the triál court was correct. Plywood Supply Co. v. Allrid, 119 Ga. App. 182 (166 SE2d 401) and Crawford v. McDonald, 125 Ga. App. 289, 293 (187 SE2d 542).

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, P: J.,.Quillian and Stolz, JJ., concur. Pannell, J., concurs in the judgment only. Deen and Evans, JJ., dissent. Webb, Parker, Young & Ferguson, Thomas L. Murphy, for appellant. Charles E. Walker, Palmer H. Ansley, for appellees.

1 Our evaluation is based upon the entire ALR annotation, particularly § 17 sub-titled "Thieves,” containing those decisions in which the intermeddlers had stolen the vehicles. See also page 649 for editorial comment.