208 P. 924 | Mont. | 1922
These two causes were consolidated and tried together in the district court of Yellowstone county and are presented to this court upon a single record. On appeal they were argued and briefed together, and will be jointly considered and determined.
In the first cause John R. Clawson, as the administrator of the estate of Harold Clawson, deceased, seeks the recovery of $50,000 damages from the defendant from the alleged negligent killing of Harold Clawson, plaintiff's son; and in the second cause the plaintiff seeks recovery in his own right of $20,000 damages for loss of decedent's earnings between the date of his death and the time that he would have reached his majority.
It appears that the deceased was ten years of age, and that while crossing Second Avenue North in the city of Billings on December 10, 1918, he was struck by an automobile belonging to the defendant, then being driven by defendant's son, Herman, eighteen years of age, as a result of which the decedent was severely injured and died. It is alleged that the automobile was owned and maintained by the defendant "for the use, convenience, pleasure, and comfort of himself and family"; that Herman Schroeder, the minor son of the defendant, and a member of his family, "was authorized and had authority from the defendant to operate and run said automobile, and was so employed by the defendant for that purpose"; that at the time of the accident it was being driven at an excessive rate of speed, in violation of the ordinances of the city. Upon issue joined, both cases were tried together to a jury. In the first judgment was rendered and made in favor of the plaintiff as administrator for $1,000 and costs upon a verdict in plaintiff's favor of $1,000; and in the second judgment was rendred and made in plaintiff's favor for $5,000 and costs, upon a verdict for the plaintiff in the sum of $5,000. In the first cause plaintiff has appealed from the judgment and order *493 denying his motion for a new trial; and in the second the defendant appeals from the judgment and order denying him a new trial.
Although many errors are assigned, there is, in our opinion, but one question necessary to be considered, decisive of both appeals,viz., the liability of the owner for the tort of his son, while driving an automobile on an independent mission; it having been purchased and used for family purposes.
The evidence discloses that .the defendant owned and operated the automobile in question in connection with his business and for the pleasure of himself and his family; that the defendant, being away from home much of the time, instructed his two sons not to use the car in his absence without obtaining their mother's permission. On the night of the accident Mrs. Schroeder directed her son Herman to take two lady guests to their respective homes from the Schroeder residence; and Herman, in obedience, first drove one of them to her residence, immediately returning for the other lady, whom he then took to her home. Thereupon he started down town to the Y. M. C. A. building, for purposes of his own, doing so in disobedience of his mother; and, while hurrying so as to avoid being late for supper, the unfortunate accident occurred.
Herman Schroeder testified: "My mother told me to take the ladies home, but not to go down town. * * * I drove this car down town that night on my own errand. I was not driving it for my mother. I was going to the Y. M. C. A."
In the case of Lewis v. Steele,
In the recent case of Hoffman v. Roehl,
"The essence of the doctrine of respondeat superior is that of agency. The relation of parent and child, or husband and wife, or other family connection, unaccompanied by the contractual relation of employer and employee, is not sufficient to create responsibility on the part of the one for the act or omission of the other." (See section 901, Babbitt on the Law Applied to Motor Vehicles, 2d ed., by Blackmore; also Shearman Redfield on Negligence, 5th ed., sec. 114; Thompson's Commentaries on Negligence, 2d ed., secs. 537, 538.)
Liability cannot be cast upon the defendant merely because [1] he owns the car or because he permitted his son to drive the car whenever he wished to do so, or because the driver was his son. Liability arises from the relation of agency, and it must be determined by the inquiry whether the driving at *495
the time was within the authority of the principal, in the execution of his orders or in the doing of his work. Agency is not presumed merely by the fact that the driver of the automobile happens to be a member of the family of the owner thereof. (Maher v. Benedict,
In the absence of proof of agency, the plaintiff is not entitled to a recovery, even though it may appear that the son was driving the automobile at the time of the accident with the express or implied consent of his father. The defendant's son did not drive the automobile at the time of the accident with either the knowledge, consent, approval, or direction of the defendant or in his place or stead, so that the defendant cannot be held responsible upon any theory. It is a rule well-established that the father cannot be held responsible for the tort of his son, committed without his knowledge or authority, express or implied. The only ground upon which the father can be held answerable for the act of his son in the case under consideration excludes the idea of an independent venture on the part of the son. (Stowe v.Morris,
In discussing the liability of the father under the family purpose doctrine, the supreme court of New York in the case of Van Blaricom v.Dodgson,
In Watkins v. Clark,
The doctrine in the state of Missouri, first enunciated by the court of appeals, held the father responsible under the family purpose doctrine. (Daily v. Maxwell,
In the case of Arkin v. Page,
In McFarlane v. Winters,
The doctrine of respondeat superior applies only when the [2] relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged as a result *499
of the wrong. (Doran v. Thomsen,
The cast last cited appears to be the leading and earliest case to give recognition to the basic principle involved, holding that the father who owns the automobile is not liable merely because of the relationship, and that, in order to hold the father responsible, the proof must be sufficient to show that the relation of servant or agent of the master existed at the time.
We are of opinion, and express the rule in this state, that [3] the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained by its operation by the owner's minor son, while operating the same on a public street or highway in furtherance of the son's own business or pleasure. The fact that the son had the father's special or general permission to use the car is wholly immaterial.
Although there are numerous and respectable decisions holding to the contrary, we think the better rule is that herein expressed, supported by many well-reasoned decisions. (Arkin v. Page, supra; Watkins v. Clark, supra; Hays v. Hogan,
Objection to the contrary rule lies in the fact that the fundamental principles of agency have been wholly disregarded. The newness of the invention, lack of appreciation of the fact that an automobile is not inherently dangerous, and that it has come to us to supplant other means of road transportation, led many courts into error. The decision in the case of Lewis v. Steele, supra, is modified so far as in conflict *500 with the views herein expressed. The motions for directed verdicts should have been granted.
The judgment and order in the first case are affirmed, and in the second the judgment and order are reversed, and the cause is remanded, with directions to enter judgment in favor of the defendant.
ASSOCIATE JUSTICES COOPER and HOLLOWAY and HONORABLE ROY E. AYERS, District Judge, sitting in place of MR. CHIEF JUSTICE BRANTLY, disqualified, concur.
Rehearing denied July 10, 1922.
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