Aurend v. Schroeder, Admr.

On the night of November 17, 1925, plaintiff in error, George C. Aurend, rented a Willys-Knight automobile of the Rentacar Company. He had never driven and did not know how to operate an automobile. He telephoned a friend, Mr. Kaucher, to meet him at the place of business of the Rentacar Company. Kaucher did meet him there, and without anything being said by either of them both got into the automobile, Kaucher proceeding and continuing to drive it. Aurend testified, "I left it, the driving was entirely up to him. I did not tell him how to drive or where to go." They drove about the business portion of Toledo, and then decided to go and did go out to Aurend's home. Leaving there about or shortly after midnight, they "started back to the Rentacar garage." Aurend testified that as "we approached Collingwood avenue on Collins street * * * Mr. Kaucher remarked that we might be running out of gasoline," and "said we had better drive to a gas station." While on the way to a gas station they collided, at Collingwood and Central avenues, with an automobile owned and driven by Leonard R. Spence. Spence died as a result of injuries received by him in this collision, and defendant in error, William J. Schroeder, as administrator of his estate, commenced an action in the court of common pleas to recover damages for his death, caused, it was alleged, by the negligence of Kaucher, who acted as, and was, the agent of Aurend in driving the automobile which the latter had rented from the Rentacar Company. The trial resulted in a verdict and judgment of $3500 in favor of the plaintiff. The defendant Aurend seeks to reverse this judgment, alleging as the sole ground of error that the trial court refused to direct a verdict in his favor. He claims that the evidence failed to prove that Kaucher, in driving the automobile, acted as his agent.

In our opinion Aurend, as the bailee of the automobile, bore the same relation thereto as if he had been the owner thereof. There is no evidence that he rented the automobile for Kaucher, or that he in any way surrendered the control thereof, incident to such ownership. On the contrary, he invited or permitted his friend to ride with him and to drive the automobile. He hired the car for the purpose for which it was being used, and the evidence showed that on previous occasions he had rented an automobile and Kaucher had driven it under similar circumstances.

This is not a case of a person borrowing an automobile for purposes of his own and thereafter inviting the owner thereof to accompany him as a passenger or guest, nor a case where a member of the owner's family, with permission of the owner, uses the latter's car for his own pleasure or upon his own business, the owner accompanying him, but having no control over the automobile, its operation, or use. The mere fact that Aurend could not operate an automobile made it none the less his automobile for the time being. He had the power to direct Kaucher where to go or to stop the car, had he so desired. If Kaucher had refused to obey, and for any reason Aurend was unable to compel him to do as he directed, and Kaucher continued to operate the automobile, it may be that under such circumstances Aurend would not be responsible for the subsequent negligence of Kaucher, resulting in injuries to a third person.

If, under the facts in evidence, a person could relieve himself of responsibility for injuries resulting from the negligence of one selected or permitted by him to drive his automobile, then the easiest way for one, desiring to enjoy an aimless pleasure ride, to avoid liability for the possible negligent operation of his automobile, would be always, on such occasions, to permit some person competent to drive it, but financially irresponsible, to operate it for him.

In confirmation of our conclusion we call attention to 2 Blashfield, Cyclopedia of Automobile Law, 1337, Section 18; Babbitt, The Law Applied to Motor Vehicles (2nd Ed.), Section 871; 1 Thompson's Commentaries on the Law of Negligence (2nd Ed.), Section 513; 42 Corpus Juris, 1125.

Finding that the trial court did not err in the respect charged, the judgment is affirmed.

Judgment affirmed.

RICHARDS and WILLIAMS, JJ., concur.