Plaintiff brought an aetion against defendant for damages to plaintiff’s automobile resulting from a no-contact rural highway accident.
This mishap occurred about '8:25 a.m. October 26, 1960, on Highway 13 about two miles north of its junction with Highway 64 in Linn County.
Plaintiff’s automobile was being operated in a southerly direction by his 18-year-old son Thomas, accompanied by a 16-year-old brother Patrick. There were no other occupants of plaintiff’s vehicle.
Defendant was traveling in a northerly direction and turned *1200 left into a driveway leading to the Federal Hybrid Seed Corn Company plant.
Moving at a high speed Thomas turned left past defendant’s ear, lost control and struck a telephone pole, causing irreparable damage to plaintiff’s automobile.
From judgment adverse to plaintiff after trial to the court, with jury waived, plaintiff appealed.
Errors assigned by plaintiff on this appeal are: (1) The court erred in its findings of fact, and (2) the court erroneously found plaintiff’s son was contributorially negligent and imputed this to plaintiff as a bar to his recovery.
I. Findings of fact by the trial court have the force and effect of a jury verdict and if supported by the evidence we will not interfere. Rule 344(f) 1, R. C. P., and McCune v. Muenich,
The trial court found defendant, traveling at about ten miles an hour, saw plaintiff’s oncoming car about two blocks away; concluded he could turn safely; gave an appropriate left turn signal; made the turn; and the rear of his vehicle had about cleared the west edge of the paved roadway when he stopped his car.
That Thomas was driving his father’s car at a speed of not less than 70 miles an hour; passed a same direction vehicle; turned left as he approached defendant; applied his brakes; skidded about 84 feet; ran off the east side of the pavement; hit a telephone pole ten to 12 inches in diameter about 50 feet away, tearing out a ten-foot section approximately four feet off the ground, after which the ear spun around counterclockwise three times; continued then in a southerly direction; crossed a gravel road; and came to rest in a cornfield about 267 feet from the point where the car left the pavement.
That both Thomas, and Patrick lived with their parents at the time here concerned and were on their way to Iowa City where Thomas was to have a postoperative checkup and Patrick was to keep a dental clinic appointment.
That after the accident Patrick told defendant they had been traveling 100 miles an hour, but this the boy later denied, claiming he had said it felt like they were going that fast.
*1201 There is no need to here engage in any exploration of the testimony. We are satisfied there was sufficient substantive evidence to support the findings of the court sitting as a trier of the facts.
We realize there was some conflict in the testimony but as to this we said in Twohey v. Brown,
II. The trial court also found as a matter of fact that at the time here concerned Thomas was contributorially negligent, that he was plaintiff’s agent or servant, and concluded this contributory negligence on the part of Thomas was imputable to the plaintiff-father. With this conclusion we cannot agree.
By his petition plaintiff alleged the son Thomas was driving plaintiff’s automobile with his consent and permission. No claim was there made, either direetly or by inference, to the effect Thomas was an agent, servant or employee of plaintiff.
Defendant by answer admitted Thomas was operating the subject vehicle with the consent and permission of his father.
Turning now to the evidence on this point, we find Thomas first stated he was operating a car owned by his father. Then on cross-examination admitted he was driving the vehicle with his father’s consent and permission.
Following this defendant called plaintiff as-a witness. His testimony discloses he gave Thomas permission to drive the- car to Iowa City so Thomas could secure a postoperative checkup and Patrick could keep a dental clinic appointment.
He later said if Thomas had not driven then plaintiff, his wife or some third person would have taken Patrick to the clinic since the latter had no driver’s license.
But this statement alone creates no agency status between father and son.
*1202 Both boys were living at home, both were going to Iowa City and Thomas was given permission to use the father’s automobile in order to make the trip.
The elements essential to an agency relationship between father and son are totally lacking.
We have held the test of agency is the right to exercise control of the actions and conduct of another. Ganzhorn v. Reep,
Where, as in the case at hand, control is relinquished by the car owner to a consent user no agency is created. 60 C. J. S., Motor Vehicles, section 436(a), page 1086, and 8 Am. Jur.2d, Automobiles and Highway Traffic, section 584, page 138.
In the comparable ease of Burant v. Studzinski,
The conclusion reached by the trial court would require a finding the father is head of the household, his business as such is the health, education, welfare and pleasure of the family, and when any member of the family uses an automobile belonging to the father, for the benefit of the user or any other member of the household, then an agency relationship is created between father and user.
This philosophy has no firm foundation either in law or logic. In effect it would tend to inhibit the natural generosity and desires of a father to provide for the health, welfare and pleasures of his family by ultimately imposing upon him a universal responsibility for all acts and conduct of his wife and children.
The theory that all members of a man’s family are per se his servants or agents was the fictional genesis of the old family purpose doctrine for which we have had no need since section 321.493, Code, 1962, was enacted. Furthermore we find no good
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cause to now revive it. McMartin v. Saemisch,
Finally on this subject we find not one word of testimony in the case now before us which could reasonably be said to create an agency status between plaintiff and his son Thomas at the time here concerned. Hanson v. Green, Tex. Civ. App.,
The evidence clearly discloses Thomas was nothing more than a permissive user of his father’s car.
III. We once recognized what is commonly referred to as the both-ways test, imputing contributory negligence of the driver to the owner of a consent driven vehicle. But in 1956 this venerable concept was abandoned. See Stuart v. Pilgrim,
The learned trial court may have had good and sufficient cause to conclude there was contributory negligence on the part of Thomas Houlahan but if so erred in imputing it to plaintiff.
IV. This brings us to another phase of the case which demands consideration.
We have repeatedly held a decision which is proper on any ground shown by the record will not be disturbed on appeal. Stated otherwise a correct conclusion will not be cast aside because of error in reasoning on the part of the trial court. Mechanicsville v. State Appeal Board,
However this court has also said: “* *
*
while we are bound by the lower court’s findings of fact, if it applied erroneous rules of law in arriving at its decision, unless absence of prejudice appears therefrom, we must interfere. It is as though an erroneous instruction had been given to a jury.” In re Estate of Lundvall,
In the instant case, while there is no cause for us to argue with the findings of fact by the trial court, we are satisfied it applied an erroneous rule of law by imputing Thomas’ negligence to plaintiff in reaching its decision.
The trial court specifically found unnecessary any determination of alleged negligence of defendant, refrained from any consideration of proximate cause, and neither of these matters was assigned as error by defendant in an attempt to uphold the judgment for him. But under existing circumstances these are matters which should be resolved by the trier of the facts.
If the testimony disclosed defendant was negligent in any manner alleged which was the proximate cause of the accident, then plaintiff would be entitled to damages regardless of contributory negligence on the part of plaintiff’s consent driver. Cronk v. Iowa Power and Light Co.,
On the other hand if the testimony disclosed negligence on the part of plaintiff’s consent driver was the sole proximate cause of the accident and resulting damage to plaintiff’s automobile, he would then be entitled to no recovery from defendant. Ness v. H. M. Iltis Lumber Co.,
V. Being satisfied this ease must be reversed and remanded, the question next presented is whether a new trial should be ordered.
We said in Flood v. City National Bank,
But where, as here, a case is tried to the court with jury waived and the court simply errs as to the rule of law to be applied in' formulating conclusions and arriving at its judgment, an appellate court need not always remand for a new trial. In re Olson’s Estate,
In the instant ease there is no reason to believe the parties have not already fully explored the factual situation, and there is little or no cause to believe a new trial would develop additional enlightening or material evidence.
In fact we are satisfied a new trial would here be nothing more than an idle gesture entailing needless additional expense for both parties, with attendant delay.
VI. The interests of justice dictate this ease be reversed and remanded, and the trial court ordered to make new findings of fact and enter judgment accordingly. — Reversed and remanded with directions.
Supplemental Opinion
The opinion filed herein April 5, 1966,
*1206 Plaintiff originally alleged the automobile for which he sought damages belonged to him alone.
During trial it developed title to the car involved was held by plaintiff or his wife iu the alternative.
It was also then disclosed plaintiff-father was the sole parent consenting to use of the car being driven by the son at the time of the subject accident.
Appeal was by plaintiff alone SO' error was neither assigned nor argued as to the matter of real party in interest.
With that issue eliminated we, for convenience and clarity, dealt with the father as sole owner of the car. The net result is still the same.
On the filing of this supplemental opinion, a rehearing is denied.