Counts 1 and 2 proceed upon the theory of respondeat superior; that is, that the driver of the automobile in question was the agent of the defendant, and was acting within the line and scope of his authority when he ran over the plaintiff's intestate. We think that the proof utterly fails to establish these material facts, as the defendant was absent from the Decaturs at the time, there was no express authority for the son to use the vehicle at this particular time, and at most there was a mere implied consent, growing out of the relationship of the parties and a previous use of same by the son. It also appears that the son, who was a grown man, engaged in business for himself, was at the time using the car for his own personal pleasure and benefit, and in no respect in the interest of or in behalf of the defendant. Upon the undisputed facts in the case, the defendant was entitled to the general affirmative charge, upon the authority of Parker v. Wilson,179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87, which was followed and approved in the case of Armstrong v. Sellers,182 Ala. 582, 62 So. 28. The case of Heissenbuttel v. Meagher,162 A.D. 752, 147 N.Y. Supp. 1087, is strikingly similar to the case at bar:
"The plaintiff, while standing in a public street, waiting for a surface car, was struck and injured by an automobile belonging to defendant and driven by his son, a young man 24 years of age. This son was pursuing his studies as a law student, and lived with his father as a member of his family. The automobile was a pleasure vehicle, kept by defendant for the use of himself and his family. His son was privileged to use it for his individual purposes, whenever he so desired. It was customary, also, for the son to act as chauffeur of the car when it was used by defendant or other members of the family. On the occasion of the accident the son had taken the car out for a pleasure drive, accompanied by several of his friends. Neither defendant nor any other member of his family, except his son, was in the party. It is evident from these facts that when the accident happened the car was neither expressly nor constructively in the use or service of the defendant, and that in driving the car the son was in no way acting as the defendant's agent. Under these circumstances, we hold that defendant is not liable for his son's negligent operation of the car."
The trial court erred in refusing the general charge for the defendant as to counts 1 and 2. This case is unlike the case of Erlick v. Heis, 193 Ala. 669, 69 So. 530, and which was differentiated from the Parker and Sellers Cases, supra. There the son was not operating the car for his sole benefit and pleasure, but was taking the defendant's wife and her guests to Birmingham.
While automobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of same, except upon the theory of the doctrine of respondeat superior, yet there is an exception if he intrusts it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality, and the incompetency is known to the owner when permitting the use of the vehicle. Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87; Daily v. Maxwell, 152 Mo. App. 415, 133 S.W. 351; Lynde v. Browning, 2 Tenn. C.C.A. 262; Allen v. Bland (Tex.Civ.App.)168 S.W. 35. See, also, note as to third class, in L.R.A. 1915D, p. 691. We think the averment, in counts 3 and 4 of the complaint, that Thomas "was, and had long been, a careless, indifferent, heedless, and reckless driver of such car," was the equivalent of charging that he was incompetent. First Nat. Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39. As was said in the Parker Case, supra:
"In the case of a mere permissive use, the liability of the owner would rest * * * upon the combined negligence of the owner and the driver, negligence of the one in intrusting the machine to an incompetent driver, of the other in its operation."
We do not think the counts 3 and 4 were subject to the defendant's demurrer.
We also think that there was evidence from which the jury could infer that Thomas was such a fast and reckless driver as to render the machine in his hands dangerous, that his use of the machine was permissive, and that the defendant, while permitting him to use the machine, was informed of his incompetency, and that the jury could infer that the death of the plaintiff's intestate resulted from the recklessness and negligence of the said Thomas in driving the automobile. The evidence was not, of course, one-sided, as there was evidence tending to show that he was a skillful driver, that the intestate was guilty of contributory negligence, and that Thomas was not guilty of subsequent negligence. Nor was there proof of an express consent from the defendant to her son to use the vehicle upon this occasion, or that she had actual notice of his incompetency as a driver, though there were circumstances from which all these facts could have been inferred by the jury. Therefore the trial court did not err in submitting counts 3 and 4 to the jury and in refusing defendant's general charge as to the said counts.
We do not think that the appellant can predicate reversible error upon the part of the trial court in sustaining the demurrers to her special pleas before amendment. The trial court overruled the demurrer to said pleas after amendment, and the amendment did not put any additional burden upon the appellant, certainly not as to those which were shortened by the amendment; and, as to those to which additions were made, the *Page 118 addition merely set out facts essential to establish negligence on the part of the intestate, which was averred generally in the pleas before amendment, and which the defendant had to prove in order to establish said pleas before amendment.
Replication 2, to the defendant's special pleas, set up subsequent negligence on the part of the driver, Thomas Gardiner, and under our system of pleading was provable under the initial counts, and which fact would have rendered the action of the trial court in sustaining a demurrer to same harmless. But there was no impropriety in setting up subsequent negligence by way of a replication, and which was sufficiently done in replication 2, and the defendant cannot complain that she was specifically informed of facts which could have been proved under the counts without a replication. It is true the replication describes Thomas Gardiner as the defendant, but this was an inadvertence, which was self-correcting, and which would no doubt have been stricken from the replication, had it been brought to the attention of counsel for the plaintiff and the trial court.
We have considered and discussed all the points made in the brief of the appellant upon the submission of the case. For the errors above suggested, the judgment of the law and equity court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.