The plaintiff was struck by a Ford coupe driven by Robert Burley, Jr., sustaining serious injuries. The coupe was owned by Robert Burley, Sr., the father of Robert, Jr., but was being used by the son for his own pleasure at the time of the accident. The plaintiff recovered a judgment against both Burleys in this action.
The main contentions of defendants are, that the coupe was purchased and used by the father solely as a business car and not for "family purposes", that he had strictly forbidden his son to take it for his personal use, that the son was an adult and not a member of the father's family, and that the father is not liable under the "family purpose" doctrine.
Burley, Sr., owned a Buick sedan which he kept solely for family purposes. He stated that the coupe was purchased (several months before the accident to plaintiff), for business purposes and was used only as a business car. The testimony of both defendants shows, however, that from time to time the coupe was used for the pleasure of Mrs. Burley, Sr., or for her pleasure and that of a minor son, Lindsay. The mere fact that a car is purchased for business purposes does not prevent its coming within the "family car" doctrine where it is used for family pleasure. Huddy, Automobiles, 7th ed., sec. 784, p. 858. The defendants themselves recognized some probative value in their admissions, as they submitted to the jury in an instruction (No. 15) whether the coupe was used as a family car. Burley, Sr., also stated that he forbade Robert, Jr., the privilege of using the coupe for his own purposes at the time it was purchased; that quite frequently he had directed the son to drive the coupe in the prosecution of his business, but had never given him permission to use it for his own pleasure; and that about a week before the accident, he had again refused his son the personal use of the car. He admitted, however, that he had seen Robert, Jr., driving it several times when not authorized to do so; that he left the key in the car at all times, and kept the garage unlocked, and that there was nothing to prevent the son taking the car for his own purpose if he so desired. *418
The son corroborated the father's testimony in all respects, admitting that he had frequently used the car for his own pleasure, when he could "slip it out" without his father observing him.
In Landry v. Overson, (Iowa)
Robert Burley, Jr., was twenty-five years of age at the time of the accident. After arriving at his majority he had married, moved to Ohio, failed in business there, and then returned to the home of his father. "For financial reasons", as he stated, his wife and child resided with her father, and he resided with his. It was her custom, however, to spend about half of the time with him. He worked for his father, performing such general duties as directed, and received as wages $20.00 a week, room and board. No extra charge was made by his father for the visits of his wife and child. It is contended that under these circumstances and particularly in view of the son's emancipation, he was not a member of his father's family. Emancipation is not a test in such case. A son residing with the father does not cease to be a member of the father's family when he arrives at his majority by reason of that fact alone.Ry. Co. v. Chisholm,
*420"The word family has two very distinct meanings: 1st, The collective body of persons, who live in one house and under one head or manager; and it may include in this sense parents, children, servants, or in some cases even boarders or lodgers; 2d, Those who descend from one common progenitor; and in this sense it cannot include the parents and has no reference to the fact of residence in one house and under one head. When used in its first sense, it rarely includes boarders and lodgers; sometimes includes servants; generally includes children; but is sometimes confined to the wife and infant children or those dependent on the head of the family by reason of their relations independent of contract. The word has this comprehensive, or more or less limited, sense, as will most effectually carry out the purpose of the document, in which it is used."
In the case of Jones v. Cook,
In support of the contention of error on this point, defendants' brief cites Van Blaricom v. Dodgson,
There is testimony that Robert Burley, Jr., was under the influence of liquor at the time of the injury to plaintiff. Burley denies that he had been drinking, but the evidence to the contrary is corroborated by his general deportment. Prior to striking plaintiff he had driven the coupe so as to crash into the rear of a parked automobile. Without stopping to make amends for that damage he had proceeded on his way. A traffic officer pursued him on a motorcycle. Burley's speed *422 was so rapid, although along a crowded street, that the officer was unable to overtake him and fired several shots at the tires of the fleeing car, one of the shots passing through the body of the coupe. While this race was in progress the coupe struck the plaintiff as she was about to board a street car. Burley testified that he feared the traffic officer was a highwayman attempting to hold him up, that he fled because he thought his life was in danger; that he did not see the plaintiff and did not know that he had struck her until so informed afterwards. That testimony, if true, is confirmatory of a condition inebriate, instead of presenting a defense as defendants contend. If we assume that the conduct of the officer was culpable and contributed to the accident, that assumption does not acquit defendants of Robert, Jr's., legal obliquity. A defendant in a tort action cannot escape liability because a third party was concurrently negligent. All who contribute proximately to an injury are responsible severally as well as jointly. See Hutcherson v. Power Company, recently decided by this Court.
The charge of contributory negligence is groundless. The place of the accident was a regular street car stop. Plaintiff had the right to assume that no automobile would attempt to pass the street car while it was stopping to receive passengers.
Defendants further say that the plaintiff was permitted to speculate in her testimony as to her injuries, and that her counsel was permitted to appeal to the passions of the jury in his address to it, greatly to their prejudice. The tibia of plaintiff's right leg was broken, the fracture extending into the knee joint; the ligaments of her left leg were ruptured. She received numerous superficial cuts and bruises. She experienced intense pain which continued for months after the injury. She is a graduate nurse. In the opinion of physicians her disability is likely permanent. If so, her efficiency in her professional work will be permanently impaired. The verdict of the jury was for $8,500.00. In view of the magnitude of plaintiff's suffering and injuries that amount does not indicate that the jury was influenced in the slightest degree by the speculation of plaintiff or the appeal of her counsel. *423
Error is charged in the giving and refusal of instructions. We have examined the instructions with care and find them subject to no criticism except duplication.
Numerous assignments of error are also made to the admission and rejection of evidence. We find no prejudicial error in these assignments. The circumstances under which Robert, Jr., resided with his father made him a member of his father's family as a matter of law. Irrespective of other evidence, the admissions of defendants as to the use of the coupe for family purposes and as to its personal use by Robert, Jr., with the knowledge of the father, amply support the verdict.
The plaintiff moved the dismissal of the writ of error in this case, as improvidently awarded. As we find no merit in the writ, a discussion of plaintiff's motion is unnecessary.
The judgment of the lower court will be affirmed.
Affirmed.