No. 22,712 | Minn. | Jun 23, 1922
Plaintiff’s intestate, James W. Eichardson, while driving an automobile on a public highway in this state, was overtaken by the defendant Fred Weiss, driving his father’s automobile. Fred undertook to pass and struck the Eichardson car. It left the road, overturned, and Mr. Eichardson was pinned under it and sustained injuries from which he died. This action was brought by his personal representative against the father and son to recover damages under the death statute.
The complaint, charged that Mr. Eichardson’s death was caused by the negligence of Fred Weiss; that the car he drove was owned and kept by his father for the use of his family and that Fred was a member of the family and had authority to use the car on the occasion in question. The jury returned a verdict in plaintiff’s favor. The defendant Joseph Weiss made the usual blended motion for judgment or a new trial and has appealed from an order denying it. But two questions are presented: (1) Was Fred negligent in the operation of the car? (2) Does the evidence justify a finding that Fred was operating the car with the authority of his father?
The Eichardson car was traveling west on a good road, the traveled portion being 2á feet wide. There was a slight grade at the place of the accident and the roadway was somewhat above the surface of the ground on either side. Whether Fred gave any signal before he tried to pass was one of the disputed questions in the
At the time of the accident the Weiss family consisted of the defendant, his wife and their two sons, Henry, 25 years old, and Fred, 20 years old. In July, 1916, the father purchased his first car. No one drove it except the two sons. It was kept in an unlocked shed near the house and was used as a family car for pleasure driving and in doing business errands. During the season it was driven once to twice a week for one purpose or another. With their father’s permission, the boys used it to go to dances in the neighborhood. In 1917 Fred entered the United States navy and was away from home until the spring of 1919. In the meantime the first car was exchanged for another, which was kept in the same place and used for the same purposes as the first.
On August 19, 1919, there was a gathering at Hutchinson to celebrate the homecoming of exservice men living in that locality. Fred wished to attend, and the evening before asked his father whether he might take the car to drive to Hutchinson the next day. His testimony as to his father’s reply contains conflicting statements. In the course of the direct examination he said his father told him to go with someone else if he could, and that he then arranged to go with a neighbor named Donney. On cross-examination he qualified this statement by saying that his father told him he could not take the car. His father testified that when either of the boys wanted to go out on a pleasure trip, they had to ask him for the car; that they had been told not to take it without his permission; and
Upon this evidence, it is contended that it conclusively appears that Fred was wholly without authority to take the car. The question is a close one, but we have concluded it was one for the jury.
In a general way the facts do not differ substantially from those in Jensen v. Fischer, 134 Minn. 366" court="Minn." date_filed="1916-11-10" href="https://app.midpage.ai/document/jensen-v-fischer-7978250?utm_source=webapp" opinion_id="7978250">134 Minn. 366, 159 N. W. 827, and Johnson v. Schuler, supra, page 137, 188 N.W. 271" court="Minn." date_filed="1922-05-12" href="https://app.midpage.ai/document/johnson-v-schuler-7980649?utm_source=webapp" opinion_id="7980649">188 N. W. 271, where the father was held liable notwithstanding his positive uncontradicted assertion that, his son had taken the car contrary to his instructions. The suggestion in the Jensen case that self-interest naturally prompts the defendants in cases such as this to protect the responsible defendant by testimony that the use of the car was forbidden is applicable here. Equally applicable is the statement that because there is no conflict in the testimony the case does not necessarily become one for the court instead of one for the jury. It is passing strange that these young men, living at home and on friendly terms with their parents, should be subject to the inflexible rule that they must never take the car without express permission from their father. Moreover, if Fred deliberately disobeyed an express order given the night before, he would hardly have gone about it so openly, for his mother would almost certainly have interfered.
The liability of the owner of an automobile, kept for family purposes, for injuries resulting from its negligent operation when used by a member of his family, has gradually been extended. See note 5 A. L. R. 226. The doctrine has developed step by step until it
Order affirmed.