Appeal from order of Superior Court, April T., 1967, No. 183, affirming order of Court of Common Pleas of Washington County, May T., 1964, No. 715, in case of Odessa Littles, a minor, et al. v. Avis Rent-A-Car System.
Paul A. Simmons, with him Tempest & Simmons, for appellant.
Francis H. Patrono, with him Robert D. Beck, and Patrono, Ceisler and Edwards, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief justice Bell. Mr. Justice Cohen dissents. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.
This is an appeal from the Order of the Superior Court which in a per curiam opinion affirmed the Order of the Court of Common Pleas which had dismissed plaintiffs' motion to take off a compulsory non-suit. The question to be resolved is whether the lessor of a motor vehicle is liable for damages to a passenger in a van type truck when the lessee-driver of said vehicle drove it into an overhead railroad bridge.
On August 15, 1962, Alfred Kemp rented an eightton truck from the Avis Rent-A-Car System. At the time of the rental, Kemp was asked whether he had had any experience in driving a truck; he replied that he had had experience in driving a pickup truck. In order to complete the transaction, Kemp produced his driver's license duly issued by the Commonwealth of Pennsylvania. Kemp was then given a receipt which, among other things, showed that the height of the truck was twelve feet.
On the same day as he rented the truck, Kemp attempted to drive the truck under a railroad bridge which was less than twelve feet high. The top of the truck hit the bridge, causing personal injury to the minor plaintiff, who was Kemp's passenger in the truck.
Plaintiffs brought suit against the Avis Rent-A-Car System, alleging that Avis was negligent in renting its truck to a person it should have known lacked the proper experience to drive such a vehicle. There are no Pennsylvania cases directly in point and the cases which plaintiffs cite from other jurisdictions do not support them. We need not decide whether Section 390 of the Restatement 2d, Torts, page 314 (1965), upon which plaintiffs also rely, should be adopted by us, because plaintiffs have failed to bring themselves within its language.
Plaintiffs assume that because the driver hit the railroad overpass, he must have been incapable of properly driving the truck. It is quite possible, however, that the accident was not due to the inexperience or incompetency of the driver, but rather to mere lack of attention or error in judgment on his part.
Not only did defendant's agent make inquiries about Kemp's previous experience in driving trucks, but he also requested and was shown by Kemp a valid driver's license issued to him by the Commonwealth. The prerequisites for the issuance of such a license are clearly set forth in Section 608(a) of the Act of Assembly of April 29, 1959, P. L. 58, 75 P.S. § 608(a): "(a) Before issuing an operator's license to any permittee, except as otherwise provided, the secretary shall require the applicant to demonstrate personally to him, or his representative, in such manner as the secretary may direct, that such applicant is a proper person to operate a motor vehicle or tractor, has sufficient knowledge of the mechanism of motor vehicles or tractors to insure their safe operation, and a satisfactory knowledge of the laws and regulations concerning motor vehicles or tractors and their operation." This Court has said, in Piquet v. Wazelle, 288 Pa. 463, 465, 136 Atl. 787 (1927): "It will first be observed that an automobile is not an instrumentality inherently dangerous . . . where it is driven by one regularly licensed, as here, and whose ability to operate has been certified to by the State, which authorizes the individual to control the car. Prima facie, under such circumstances, he is fit to do so. . . ."
Under the facts of this case, there is no evidence of any knowledge on the part of the lessor of lessee's inability to drive a truck or any reason for lessor to have taken any more ...