(concurring).
This case, requiring precise evaluation of Supreme Court decisions, is of the utmost importance to the automobile owning public.
The principal question is: Should the owner of a motor vehicle be liable for all damages caused by the negligent operation of such vehicle by a person using such vehicle with permission of the owner when the owner does not know and has no reason to believe that such person has no operator’s license or that he is a careless and reckless driver ? 1
Subsidiary questions are:
Should the owner of a car be required to investigate whether the person to whom *894permissive use of the car is to be given has an operator’s license and whether or not he is a careful driver in order to avoid liability for the negligent operation of the car by such person and, in the matter of the license, if such investigation is required is an inquiry by the owner a sufficient investigation?
I accept as correct the following undisputed facts listed by appellee in his brief:
“1. Jimmy Wilson, a colored boy, was hired by appellant’s partner either on Tuesday, September 11, 1956, or on Wednesday, September 12, 1956. Appellant was not present when Wilson was hired.
“2. Wilson was hired to work as a porter and handy man. He was not employed to drive motor vehicles.
“3. Appellant saw Wilson for the first time on Wednesday, September 12, 1956.
“4. On Thursday, September 13, 1956, appellant requested Wilson to drive his, appellant’s Pontiac to the home of Mr. Buaas, located about 200 yards down the road and about 200 yards from the road.
“5. Appellant had never seen Wilson before Wednesday, September 12, 1956.
“6. Appellant did not ask his partner, Sam Davidson, anything about Wilson’s background.
“7. Before he let Wilson drive to the Buaas’ on Thursday, September 13, 1956, appellant did not
“(1) ask Wilson if he had a driver’s license;
“(2) ask Wilson to show his driver’s license ;
“(3) ask Wilson about his driving experience; whether he had had any accidents or traffic violations.
“8. Before requesting Wilson to drive the Pontiac to Foy’s Barbecue Stand on Friday, September 14, 1956, appellant did not
“(1) ask Wilson whether he had a license;
“(2) ask Wilson to exhibit his license ;
“(3) make any inquiry as to the driving experience of Wilson.
“9. Appellant loaned his Pontiac to Wilson on Saturday, September 15, 1956, without first
“(1) requesting Wilson to show his driver’s license, and
“(2) inquiring as to Wilson’s driving experience, competency and background.”
Appellee says there is some doubt as to whether appellant asked Wilson if he had an operator’s license before lending him his car to drive on the occasion in question. I do not so consider it. Appellant and Wilson both testified in unequivocal manner that such inquiry was made. I refer to the testimony of Wilson, who was appellee’s witness, set out in the majority opinion.
As shown by special issues Nos. 9 and 12, majority opinion, there are two distinct grounds upon which the judgment is or could have been based: (a) appellant’s negligence in failing to ascertain that Wilson had no driver’s license (b) appellant’s negligence in lending Wilson his car when by the exercise of ordinary care he “should have known that Jimmy Wilson was a reckless and incompetent driver.”
Considering the latter question first it is to be noted that appellant cites no case in which it is held that there is an affirmative duty on the part of a car owner to investigate the driving habits of a person who desires to borrow his car in the absence of circumstances reasonably calculated to provoke inquiry and investigation.
*895In this case there are no facts or circumstances which would cause a person with a reasonable mind or a person with a suspicious mind to become curious or suspicious about the driving habits of Jimmy Wilson.
I believe the law on this subject to be correctly stated in S-A Am.Jur. 592, Sec. 581, as follows:
“In order to hold the owner of an automobile liable under the common-law rule charging him with liability for the negligence of an incompetent, reckless, or unfit driver to whom he entrusted his car, the plaintiff must establish by competent evidence that the owner had knowledge of the driver’s incompetence, inexperience, or reckless tendency as an operator, or that, in the exercise of ordinary care, he should have known this from facts and circumstances with which he was acquainted. That knowledge may be established by the fact that he knew of specific instances of carelessness or recklessness or by the proof that the driver’s incompetence was generally known in the community. The common-law rule charges the owner with liability because of his negligence in knowingly and wilfully permitting an incompetent driver to operate his car. Such liability on the part of the owner is generally confined to cases where he entrusts his motor vehicle to one whose appearance or conduct is such as to indicate his incompetency or inability to operate the vehicle with due care. To impose liability in other cases, where the incompetency of the en-trustee is not apparent to the entruster of the motor vehicle at the time of its entrustment, it must be affirmatively shown that the entruster had at that time knowledge of such facts and circumstances relating to the incompetency of the entrustee to operate the motor vehicle as would charge the en-truster with knowledge of such incompetency.”
The following Texas authorities are to the same effect: Gordon v. Texas & Pacific Mercantile & Mfg. Co., Tex.Civ.App. Fort Worth, 190 S.W. 748, writ ref.; Clem Lumber Co. v. Fisher, Tex.Civ.App. Waco, 84 S.W.2d 282, writ dism.; Worsham-Buick Co. v. Isaacs, 126 Tex. 546, 87 S.W. 2d 252; Mayer v. Johnson, Tex.Civ.App. Amarillo, 148 S.W.2d 454, 457, writ dism. cor. judgm.
In the last case cited the Court said:
“Under the law as announced by the Supreme Court in the last case above cited (Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063) Montford T. Johnson, Sr., could not be held liable for the consequences of the accident which caused the damage in this case unless it was shown that his son was an incompetent, reckless or careless driver, and that the father knew of his incompetency in that respect.”
The Seinsheimer case there referred to was by the then Commissioner and now Chief Justice Hickman. I quote therefrom [132 Tex. 336, 122 S.W.2d 1067]:
“In 5 Am.Jur., Automobiles, Section 355, this proposition of law is announced: ‘An owner who lends his automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, is liable for such person’s negligence; the owner’s liability in such cases is based upon his own negligence in intrusting the automobile to such a person. Intrusting the car to a minor child known to be a reckless and incompetent driver * * * constitutes an act of negligence for which the owner is liable.’
“That proposition is sound in principle and sustained by the authorities.”
In my opinion there is no evidence to support the verdict of the jury that appellant by the exercise of ordinary care should have known that Jimmy Wilson was a reckless and incompetent driver.
*896Turning now to the second ground of liability as established by the jury i. e. negligence of appellant in lending his car to an unlicensed driver, I would have no difficulty in applying the same principles and reaching the same conclusion referred to and made in discussing the first ground of liability but for the opinions of the Supreme Court in the Mundy and Spratling cases cited by the majority.
I would reach such conclusion because there is no evidence of any kind or character which would have caused appellant to believe, know or suspect that Jimmy Wilson had no driver’s license.
It is conceded that Sec. 36 of Art. 6687b, V.A.C.S., providing that no car owner shall “knowingly permit” his car to be operated by an unlicensed driver is inapplicable because appellant did not know this. But for the two decisions named above it would seem that the statute not applying resort to the common law rule of liability must be made.
The Spratling case will be discussed first. This case is primarily concerned with the question of proximate cause in cases of negligent entrustment.
It is materially different from the present case in that there the owner employed a person to drive his truck. The driver had no license and hence the employment was prohibited by statute. Sec. 37, Art. 6687b, V.A.C.S. This was negligence per se.
Furthermore in Spratling there were facts sufficient, in the opinion of the Court, to support a finding of negligence of the owner in not ascertaining that the driver had no license.
While the Court does not say so this duty to ascertain such fact must have arisen from application of the common law duty to inquire or investigate upon knowledge of facts sufficient for such purpose.
Explanation of the Mundy opinion is more difficult.
In this case there was pleading or evidence to the effect that a colored boy 18 years of age was permitted by his employer to use one of its cars during the noon hour for personal use. While so using it he ran into the back of a tractor being driven by Mundy.
The plaintiff there plead that the defendant "knew, or by the exercise of ordinary care and prudence could have and should have known, that said boy (driver of defendant’s car) did not have a driver’s license.” I quote from the Supreme Court’s opinion:
“The defendant filed a special exception to this allegation upon the ground that it was ‘immaterial and irrelevant in that if taken as true, the having or not having the driver’s license was not and could not have been a proximate cause of the accident of which the plaintiff complains * *.’ This exception was sustained by the District Court. Evidence offered by Mundy to show that Dickson did not have a driver’s license and that respondent had knowledge or notice2 of this fact was excluded by the court upon defendant’s objection.”
The Court then stated:
“The controlling question presented by this appeal is whether the District Court correctly held that the plaintiff could neither plead nor offer evidence to show that Dickson, defendant’s minor employee, had no driver’s license, and that defendant permitted him to drive the automobile with actual knowledge, or under circumstances that would be reasonable notice, that he did not have such license. This is a question which has not been decided previously by this Court.”
After noting with approval the decisions in Seinsheimer and Mayer, supra, to the effect that the owner who entrusts his car to a person known to him to be an incompe*897tent or reckless driver is guilty of negligence the Court proceeds:
“With respect to the effect, if any, to he given to the fact that the owner of the automobile knows that the driver does not have a driver’s license when he entrusts his car to such driver, the courts of other jurisdictions have reached a variety of conclusions.”
The Court then discusses the authorities in other jurisdictions and concludes:
“In part the differences in the holdings of the courts in other jurisdictions are to be explained upon the grounds of differences in the statutes requiring operators of motor vehicles to have licenses.”
The Court analyzes our statutes and has this to say about them:
“An examination of our statute requiring operators of automobiles to have licenses discloses that its principal purpose is to insure a minimum of . competence and skill on the part of drivers for the protection of persons who might be injured or have their property damaged by negligent or reckless operation of motor vehicles on the highways.”
After referring to Sec. 36, supra, and Sec. 44 of the same Act which makes violation of Sec. 36 a misdemeanor the Court continues:
“Under this statute it is plain that defendant’s agents were guilty of a violation of the law if they permitted Dickson to operate a motor vehicle belonging to defendant knowing that Dickson did not have an operator’s license. While conceding this to be true, defendant urges that the criminal penalty is the only legal consequence of a violation of the law, that the alleged facts that Dickson did not have a license and that respondent’s agents knew this are not evidence of negligence, * * * ”
The Court answers this contention ■ by holding: •
“In this state we have followed the rule that the violation of a criminal statute is not merely evidence of negligence, but is negligence per se.”
The Court made this specific ruling:
“We therefore hold that the District Court erred in sustaining the special exception to the plaintiff’s pleading and in excluding the evidence offered by the plaintiff ' in this connection.”
Thereafter the Court reversed and remanded the cause for a new trial. Before doing so, however, the Court made statements, which the trial court and the majority have relied upon in sustaining judgment for appellee. I quote the troublesome portion of the opinion [146 Tex. 314, 206 S.W.2d 590] :
“However, we think that the facts that the driver did not have a license and that the defendant’s agents by the exercise of due care could have ascertained that he did not have a license may be alleged and proved by the plaintiff for the purpose of showing that the defendant’s agents were in fact negligent in permitting Dickson to take and drive the automobile.
“The facts which the plaintiff must establish under his allegations by the preponderance of the evidence to show liability in this connection are, therefore, (1) that defendant’s agents permitted Dickson to drive one of its automobiles; (2) that at such time Dickson did not have a driver’s license; (3) that the defendant’s agents, actually knew that he did not have such license; or if they did not have such knowledge, (4) that defendant’s agents were in fact negligent in permitting Dickson to drive the automobile without ascertaining whether he had a *898driver’s license;3 (5) that Dickson while in possession under such permission drove the automobile negligently; and (6) that such negligence on Dickson’s part caused the collision and the injuries and damage to the plaintiff.”
This language of the Court undoubtedly puts a duty upon the car owner to ascertain whether the person to whom the car is lent has a license. The Trial Court here has defined the word “ascertain” as meaning “to find out or learn for a certainty.”
If the duty to find out to a certainty that the driver has or has not a license is discharged then a car owner would always have knowledge of the facts.
True it is that liability here is hedged with the definition of negligence. I do not know, however, in what way nor with what excuse a car owner could convince a jury that he acted as an ordinary prudent person in not “learning to a certainty” that the person to whom the car was lent had no license.
This is a fact which could always be learned to a certainty if proper investigation were made.
I am unable to determine the source of the duty imposed by the Court in Mundy upon the car owner to ascertain that the person to whom a car is lent has an operator’s license. Certainly it is not to be found in the statutes. Certainly it has no parallel in the common-law in negligent entrustment cases involving defective cars or reckless drivers. Nor do I believe the duty to be founded in public policy. If it were then it would apply more forcefully to reckless driver cases than it would where the driver is merely unlicensed because all reckless drivers are a public menace while unlicensed drivers may or may not be.
It is with great reluctance that I follow the rule of Mundy.
Under the Trial Court’s definition of “ascertain” about which no complaint is made I believe the jury was authorized, if not required, to find that merely asking Jimmy Wilson if he had a license was not a sufficient discharge of his duty to investigate.
There is one other very interesting question presented.
Appellant objected to the Court’s definition of negligence in that it did not contain the element of foreseeability or anticipation of consequences. Nor was the element of foreseeability contained in any issues of proximate cause directly relating to appellant because no issues of proximate cause as to him were submitted.
“Foreseeability” is an essential element of negligence. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Corpus Christi Speedway v. Morton, Tex. Civ.App. San Antonio, 279 S.W.2d 903. It is permissible to include the element of foreseeability in the definition of proximate cause. If included there it should not be repeated in the definition of negligence. Seinsheimer, supra.
The definition of proximate cause as it applied to Jimmy Wilson did contain the element of “foreseeability.” Does this cure the omission?
I believe that the opinions in Spratling and Mundy wherein they hold a finding of proximate cause (presumably containing the element of foreseeability) as between the driver and the injured party establishes a causal connection between the owner and the injured party require that all elements of proximate cause including the element of foreseeability be imputed to the owner.
I concur in the judgment of affirmance.
. Excluded from consideration are the re-, lationship of agency between the owner and operator as well as when the automobile is rented or to be operated by a commercial driver employee. Secs. 37, 38, Art. 6687b, Vernon’s Ann.Civ.St.
. All italics added.
. This alternative requirement while not within the case as stated by the court is not dictum since the case was remanded for trial. Chadwick v. Bristow, Tex.Civ.App., Austin, 204 S.W.2d 65, affirmed 146 Tex. 481, 208 S.W.2d 888.