147 N.E. 241 | Ill. | 1925
This case comes to this court for review by the allowance of a petition for writ of certiorari. The parties will be referred to as plaintiff and defendant, as they were in the trial court.
Phillip Gates, plaintiff, sued George Mader, defendant, for a personal injury he sustained by being struck by defendant's *314 automobile while driven by his son. The declaration alleged the negligent operation and control of the automobile and due care and caution of plaintiff. Defendant filed special pleas alleging that at the time of the injury he did not drive, operate or control the automobile personally or by his agent or servant. He did not deny being the owner of the automobile. Plaintiff recovered a judgment against defendant, which the Appellate Court affirmed, and this court granted defendant's petition for a writ of certiorari to review the judgment.
No question is involved as to the negligent operation of the automobile or the due care and caution of the plaintiff. Defendant relies on his special pleas as a complete defense. He is an osteopathic physician and owns an automobile, which is used by him in making professional calls and for the pleasure of his family in driving about in the parks and other places. Defendant's wife could not drive the car, but she had the permission and the privilege, when defendant could not drive for the family, of taking the car out for pleasure and getting someone else to drive it. Defendant's son, who was driving the car at the time of the accident, was twenty-four years old, was employed at and lived in the South Shore Hospital and visited his parents about once a week. Defendant testified he never objected to his son driving the car or to taking the family out in it for pleasure. He testified he did not know of the particular drive when the accident occurred until after it was over. The son who was driving the car was named Ervin Mader. In the car with him at the time of the accident were his mother, two sisters, a niece of Mrs. Mader, and a lady friend and her daughter. The women had, sometime before the day of the accident, made a luncheon engagement at the home of Mrs. Kaiser, a lady friend some distance away. They expected to be at Mrs. Kaiser's home about one o'clock and planned to go by street railway. The night before the accident defendant's wife called up a member of *315 the party and said they would go in an automobile. Ervin, the son, had returned home the evening before the accident and agreed to drive the family in the car to the luncheon. While on their way the accident happened.
Defendant contends this case is controlled by the decision inArkin v. Page,
The States of Nebraska, Washington, North Carolina, Oklahoma, Georgia, New Mexico, Kentucky, Iowa and Minnesota are cited in defendant's brief as holding the father liable whether the car is being used by one or more members of the family, and New York as having decided both ways. Counsel say the decisions are based on the family-purpose doctrine and that this court has repudiated that doctrine. To support that statement counsel cite a sentence from the dissenting opinion in the Arkin case
that there is no difference concerning liability whether one or more members of the family are in the car and a sentence from the opinion in the Graham case. In commenting on the decisions of the New Jersey court in Doran v. Thomsen,
The question involved in this case is whether, under the evidence, defendant is liable. At the time of the injury the car was being driven by defendant's son for the pleasure and convenience of the family. It is settled by the judgment of the Appellate Court that the son was driving it with the permission of defendant and that the car was being used for one of the purposes it was kept for. If defendant had himself been driving, it could not be denied he would have been liable for negligent injury, and the decided weight of authority, we think, makes him liable, under the evidence in this case, for the negligence of the son. Jordan v. Smith,
In our opinion liability in this case is based on reason and justice. Defendant denied he knew that the car was going to be used on the particular occasion but admits its use was authorized by him. This case is not controlled by the Arkincase.
We do not think the question of defendant's liability is affected by the fact that his son was of adult age and worked and lived in a hospital. In some of the cases where liability was sustained the son or daughter who was driving the car was a minor, but we do not recall that any case made a distinction on account of age, under facts similar to those involved in this case.
It is also insisted the court committed reversible error in permitting Dr. Denison to relate a telephone conversation he said he had with defendant. The objection relates more to the weight and credibility of the testimony than to *318 its competency. The mere fact that the conversation was over a telephone does not render it inadmissible.
There was no substantial error committed by the court in giving and refusing instructions.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
DUNN, THOMPSON and DEYOUNG, JJ., dissenting.