115 N.E. 443 | NY | 1917
The respondent had a family consisting of his wife, a married daughter and son-in-law and an adult son, all of whom resided with him. He was also the owner of an automobile which he "had purchased for the pleasure of the members" of his family and himself and which car his wife drove from time to time "for her pleasure" as his son "also did." Said son also drove the car in taking out the daughter and her husband and "the car was used for the entertainment of the members of the family and defendant's (your) guests." Interpreted in the light of ordinary experience this evidence means that respondent kept the car for family use, whether of pleasure or convenience, and that he permitted his son from time to time to use the same for his individual accommodation.
On a given occasion the son unaccompanied by any other members of the family and pursuing solely and exclusively his own pleasure and not any object of family entertainment or convenience, took the car and so negligently operated it as to kill plaintiff's intestate. There is no claim that he was ignorant of or generally unskilled in the management of an automobile, and the question is whether under such circumstances the respondent was so the principal of the son as to be responsible for his negligent conduct under the ordinary rules of agency. We may assume for the purposes of this discussion that if *114 the son had been driving the car while containing other members of the family, for their convenience, he might be regarded as so carrying out the purposes of his father and for which the car was maintained, as to be the agent of the latter and to make him liable for negligence. If the owner of a car directly or indirectly causes some one, whether his son or hired chauffeur, to drive the same for the benefit of members of his family, it is familiar law that such driver may become the agent of the owner, and several of the decisions cited by appellant, such as Smith v. Jordan (97 N.E. Rep. [Mass.] 761); Missell v. Hayes (91 Atl. Rep. [N.J.] 322), might be accepted on such a theory.
The proposition of liability urged in this case, however, goes further. It asserts that the father is liable for negligence in the management of his automobile by an adult son when the latter is pursuing his own exclusive ends absolutely detached from accommodation of the family or any other member thereof. On its face a proposition seems to be self-contradictory which asserts that a person who is wholly and exclusively engaged in the prosecution of his own concerns is nevertheless engaged as agent in doing something for some one else. It has always been supposed that a person who was permitted to use a car for his own accommodation was not acting as agent for the accommodation of the owner of the car. (Reilly v. Connable,
This is an advanced proposition in the law of principal and agent, and the question which it presents really *115
resolves itself into the one whether, as a matter of common sense and practical experience, we ought to say that a parent who maintains some article for family use and occasionally permits a capable son to use it for his individual convenience ought to be regarded as having undertaken the occupation of entertaining the latter and to have made him his agent in this business, although the act being done is solely for the benefit of the son. That really is about all there is to the question. Not much can be profitably said by way of amplification or in debate of the query whether such a liability would rest upon reasonable principles or whether it would present a case of such theoretical and attenuated agency, if any, as would be beyond the recognition of sound principles of law as they are ordinarily applied to that relationship. The question largely carries on its face the answer, whichever way to be made. Unquestionably, an affirmative answer has been given by the courts of some states. (Birch v.Abercrombie,
It seems to us that the present theory is largely due to the thought that because an automobile may be more dangerous when carelessly used than any of the other articles mentioned, there ought to be a larger liability upon the part of the owner, and, to this end, an extension of the doctrine of principal and agent in order properly to safeguard its use. Thus in Hays v. Hogan
(
And in the present case it is in effect argued that because the use of an automobile upon a highway may be dangerous, and, therefore, is a privilege subject to license by the state, the courts can apply a different rule of agency to its use than would or could be applied to the case of the other articles which have been mentioned. This kind of argument, as it appears to us, discloses the novelty and weakness of the proposition which is being urged upon us. It seems to disclose the idea, as an essential part of the argument, that because an automobile is different than a horse or boat, some advanced rules ought to be applied to its use. But the rules of principal and agent are not thus to be formulated. They are believed *117 to be constant and not variable in response to the supposed exigencies of some particular situation. The question whether one person is the agent of another in respect of some transaction is to be determined by the fact that he represents and is acting for him rather than by the consideration that it will be inconvenient or unjust if he is not held to be his agent. If, contrary to ordinary rules, the owner of a car ought to be responsible for the carelessness of every one whom he permits to use it in the latter's own business, that liability ought to be sought by legislation as a condition of issuing a license rather than by some new and anomalous slant applied by the courts to the principles of agency.
These views, which seem to us to be supported by principle and reason, also find authority directly and indirectly in the following decisions: Heissenbuttel v. Meagher (
We think the judgment appealed from should be affirmed, with costs.
CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur.
Judgment affirmed. *118