144 Ga. 275 | Ga. | 1915
Lead Opinion
(After stating the foregoing facts.)
It may be taken as settled law in this State that a father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relation of parent and
In Lashbrook v. Patten, 1 Duv. (Ky.) 316, a minor son, while driving his two sisters to a picnic in his father’s carriage, drawn by his father’s horses, and yith his father’s approbation, all of the children being members of his father’s family, through negligence ran against the carriage of another, causing damage. The Court of Appeals said: “The son must be regarded as in the father’s employment, discharging a duty usually performed by a slave, and therefore must, for the purposes of this suit, be regarded as Ms father’s servant. The doctrine that masters are responsible for the injuries arising from the carelessness of their servants whilst in the master’s employment and the discharge of their duties, has
In Daily v. Maxwell, 152 Mo. App. 415 (133 S. W. 351), it was held that where a father purchased an automobile for the use of his family for pleasure, and allowed his minor sop to operate it for the family, he was liable for the negligence of such son while operating it for his own pleasure with the permission of the father. On that occasion the boy had asked and obtained consent of his father to take some of his young friends to ride in the automobile. In the opinion Johnson, J., said: “The evidence discloses that the machine was devoted to the use of the family of which Ernest was a member. It was a pleasure vehicle, and, when used for the pleasure of one of the minor children of the owner, how can it be said that it was not being used on business of the owner ? It is the practice of parents to provide their children healthful and innocent amusements and recreations, and certainly it is as much the business of parentage to supervise and control the pleasures of their children as it is to give them nurture and education. Had Ernest been taking his mother for a pleasure ride instead of taking some of his young friends, no one would contend that he was not on his father’s business; or, had he been using the car on an errand of his own, such as shopping for himself, or going to school, he would have been on his father’s business, since it was the duty of his father to support and educate him. The rule that a father is not liable for the torts of his minor child applies only to cases where the tort is committed without the consent of the parent and without the scope of any duty he owes his child. We conclude that, in running the Car with the consent of his father and within the scope of family uses, Ernest was the agent and servant of his father.”
In Stowe v. Morris, 147 Ky. 386 (144 S. W. 52, 39 L. R. A. (N. S.) 224), a motor-ear was kept by a man for the comfort and pleasure of his family, including a minor son and daughter as members of it. They had the right to use it as often as and when they liked. On the occasion in question the son took the ear at his own volition, and at his suggestion carried his sister and three other ladies for a ride. While he was driving the machine, he carelessly ran down and injured a boy on a bicycle. The father was held to be liable, on the ground that, the machine having been
In McNeal v. McKain, 33 Okla. 449 (126 Pac. 742, 41 L. R. A. (N. S.) 775), a father bought an automobile for the pleasure and comfort of himself and family, his minor son, who was a member of his family, being authorized to use it at any time for that purpose. It was held that the son, in taking it out for the pleasure of himself and sister, with a friend, who was a guest of the father’s family, was a servant or agent of the father within the meaning of the rule as to liability of a principal for the torts of an agent or servant, and was not performing a service' independent of his father, and that the latter was liable for his negligence in driving the machine. In the opinion Williams, J., said: “Vehicles and motor cars may be used not only for the business of the master for profit, but also in his business for pleasure. If Paul, the minor son of the plaintiff in error, had been driving his father’s carriage (whilst he was a member of his family), in which were contained his sister and a guest of his father’s house, the same being done by him with the express or implied consent of his father, the relation of master and servant would exist, and the father would be liable for the negligent acts of the minor son whilst engaged in the 'driving of the carriage; and the same rule is supported by authority as to motor-cars.”
In Birch v. Abercrombie, 74 Wash. 486 (133 Pac. 1020, 50 L. R. A. (N. S.) 59), a man and wife owned an automobile, which was purchased and kept for the usé of the family, and it was customary for'the members of the family to drive it at their pleasure. On. a certain day whén the man and wife were absent from home, the daughter entertained a number of friends at luncheon. In taking them home in .the. automobile she negligently struck and
In Kayser v. Van Nest, 125 Minn. 277, 116 N. W. 1091, 51 L. R. A. (N. S.) 970, a man kept a car for the use, convenience, and pleasure of himself and the members of his family. It was usually driven by his daughter, nineteen years of age, and she was authorized to use it whenever she desired to do so. On the day of the accident she took it, and, accompanied by her younger sister, drove to the home of a relative, where they were joined by other young people. From this point the daughter permitted a cousin, then riding with them, to drive the car, and from his negligent driving injury occurred. On the question of whether the owner of the automobile was responsible for negligence on the part of his daughter, Taylor, C., said: “Whether the owner‘of an automobile is liable for the damages caused by it which result from the negligence of the person operating it depends upon whether the person operating it was the servant of the owner and engaged upon the business of the owner at the time the negligence occurred. If he was such servant and engaged upon such business, the owner is responsible for injuries to persons or property caused by his negligence in operating it. If'he was not such servant or was not engaged upon such business, the owner is not responsible for such negligence. Sina v. Carlson, 120 Minn. 283 (139 N. W. 601); Geiss v. Twin City Taxicab Co., 120 Minn. 368 (139 N. W. 611,
In Guignon v. Campbell, 80 Wash. 543 (141 Pac. 1031), it was held that a married woman owning an automobile as her separate property, which she permitted to be used by the different members of the family for family purposes, in the usual manner of using family conveyances, was liable for the negligence of her son (a member of the family) in driving such automobile in taking a servant to a street-car, though she was absent at the time and knew nothing of the particular use of the automobile; since, though she was not obliged to furnish the use of an automobile to the children or the family from her separate property, having voluntarily done so, it became in effect a use by her. After referring to the ease of Birch .v. Abercrombie, supra, Parker, J., said: “It is true, in the .case.before us, the automobile was the separate property of the
The case which seems to be generally cited by counsel for defendants in opposition to the views above expressed is that of Doran v. Thomsen, 76 N. J. L. 754 (71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. R. 677). The facts recited in the headnotes in that case were, that the father was possessed of an automobile which he kept upon his premises, and his daughter, about nineteen years of age, was accustomed to driving it, and did so whenever she so desired, asking permission to use it when the father was at home, but, when he was not at home, taking it sometimes without permission, there being no proof that the daughter was actually employed by the father to operate the machine. It was held, that, in an action against the father, where the daughter, in using the machine for her own pleasure in driving her personal friends, negligently injured a person on the highway, such proof was not sufficient to constitute the daughter a servant or agent of the father as the master. Voorhees, J., said, that it was error in the trial court to give a charge which made the defendant’s liability depend upon the object for which he purchased the machine (which was for the pleasure of the family), in connection with the fact that his daughter operated it for that purpose, the jury being instructed that thereby she became his servant. In one or more cases this has been differentiated from those under consideration. In Birch v. Abercrombie, supra, it was criticized, and the court refused to follow it. Ellis, J., said: “While heartily subscribing ‘to the view there expressed, ‘that the mere fact of the. relationship of parent and child would not make the child the servant of the defendant,’ we think.the opinion unsound in that it ignores the agency induced by the fact, independent of that relationship, that the daugh
Cases in which a chauffeur or a child of the owner of an automobile took it without the knowledge or consent of the owner, or against his instructions, and used it for his own purpose, entirely disconnected from the business of the owner or the purpose for which the machine was intended by him to be used, are easily differentiated from that now under consideration. Thus, in Maher v. Benedict, 123 App. Div. 579 (108 N. Y. Supp. 228), it appeared without contradiction that a son, twenty years of age, took his father’s automobile without the knowledge or consent of the father, and was using it in connection with his own business when an injury to another occurred. It does not appear that there was any evidence that the automobile was provided or kept for use by the family of-the owner for the convenience or pleasure of its members, though the expression is used that an owner who allows his son to drive the vehicle “at his pleasure,” etc. So in Reynolds v. Buck, 127 Iowa, 601 (103 N. W. 946), it does not appear that the automobile was purchased or kept by the owner for the family use, or intended for that purpose. It was taken by the owner’s son without the knowledge or consent of the father, and employed for the son’s private use.
Nothing decided in Fielder v. Davison, 139 Ga. 509 (77 S. E. 618), conflicts with what is said above. In that case .the defense was that the chauffeur of the owner of the car took it without the knowledge or consent of the owner or his wife (he being absent),
In Schumer v. Register, 12 Ga. App. 743 (78 S. E. 731), one count of a petition alleged that a widow, having the exclusive control of her minor, unmarried daughter, owned an automobile, that the daughter was riding in it, having authority and command over • the movements of it, and that it was driven by another named person, when it negligently collided with a passer and injured him. No relation of master and servant, or principal and agent, was alleged to exist between the driver of the car and the owner, nor does there appear to have been any allegation to show that the owner was liable for a tort of her daughter save the mere relationship of parent and child. An amendment was offered, alleging that the owner of the automobile kept it for the comfort and pleasure of her family, including her daughter, who was authorized to use it at any time for such purpose. The Court of Appeals held, that the count of the petition as it originally stood was insufficient; that if the daughter had been driving the automobile at the time of the collision, under certain decisions of courts in other States the mother might have been held liable; but that, under the statute of this State and the construction which the Supreme Court had put upon it, they did not think that if the amendment had been allowed the count of the petition being discussed would have shown
In the case before us it was alleged, that the defendant was the owner of an automobile; that she kept it for the comfort and pleasure of her family, including her minor son as a member thereof; that at the time of the injury complained of he was driving the car for the comfort and pleasure of himself and friends, who were riding with him, by and with the consent of the defendant. In another part of the petition it was alleged that he was the chauffeur in charge of the car, operating it for the owner, and running it on the public road with the knowledge and consent of the owner; and that the injury was caused by the negligence of the son, who was the agent and chauffeur of the owner in charge of the car. Admitting these allegations to be true, as the demurrer does, they state a case of liability on the part of the mother. If she kept the automobile to be used for the comfort and pleasure of her family, including her minor son as a member thereof, such use was her business or affair within the meaning of the rule of law discussed above. If she had placed a third person in charge of the car as a chauffeur to drive it for the purpose for which it was kept, he would have been her agent or servant, and she would be liable for the negligent manner in which he drove the car. If, instead of doing this, she allowed her minor son to act as her chauffeur or agent for the purpose of driving the car, she would likewise be liable for his negligence in so doing. If a father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose. How many of the family must be riding in the machine in order to make it a family use ? If the boy should carry his sister for a ride, this would evidently be such use. Suppose that the sister should determine not to go, and he should go alone, would the use cease'to be a family use? Certainly not all of the family have to be riding in the machine, to make it a family use. If two are sufficient for that purpose, why not one? But it may be said that here the boy was using it for the comfort and pleasure of himself and friends, who were riding with him, even though by
We will not discuss the added allegations that the automobile was used for hire, and that the defendant’s son acted as the chauffeur when it was so hired, as the other allegations show that it was not being used for hire when the injuries occurred. ' No objection was made that two theories were advanced in one count. The dismissal of the entire petition on demurrer was error. Accordingly, the judgment will be reversed, with direction that, unless amended, the paragraph in regard to the expense for physi
Judgment reversed, with direction.
Concurrence Opinion
I specially concur in the judgment, because of the allegation of the petition that the defendant’s minor son drove the automobile as her chauffeur and with her consent on the particular occasion which resulted in the plaintiff’s injury. A mother may engage her son to be a chauffeur or servant, and I construe the allegation to expressly charge that the son was acting as the servant of the mother in driving the machine. But I dissent from the proposition, which finds recognition in the opinion, that a parent who owns an automobile provided for family pleasure and driven at will by the members thereof is liable on the doctrine of respondeat superior for the negligence of a member thereon while driving the automobile filled with his own associates, and whose entertainment is in no way' connected with the use for which the automobile was intended.