Daily v. Maxwell
| Decision Date | 02 January 1911 |
| Citation | 133 S.W. 351,152 Mo.App. 415 |
| Parties | IDA M. DAILY, Respondent, v. WM. F. MAXWELL and ERNEST C. MAXWELL, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Rusk & Stringfellow for appellants.
(1) No negligence on the part of the driver of the car was shown. (2) The court erred in giving instructions F and G on his own motion for defendant. The automobile is not considered in law as dangerous per se. Huddy on Automobiles (2 Ed.), pp. 24, 29 and 33; 28 Cyc. 25; Cunningham v. Castle, 3 N.Y.S 1057; Vincent v. Crandall and Godley Co., 115 N.Y.S 600; Danforth v. Fisher, 75 N.H. 3, 71 A. 535; Lewis v. Amorous (Ga.), 59 S.E. 338. (3) A parent is not liable for the torts of his minor son. Basset v Riley, 131 Mo.App. 676; Needles v. Burke, 81 Mo. 569. (4) The master is not liable for the negligence of his servant unless the servant was at the time acting within the scope of his employment and about his master's business. 26 Cyc. 1518; 20 Am. and Eng. Ency. Law 167; 2 Thompson on Negligence, 855, 885, 886; Shearman and Redfield on Negligence, sec. 62, 63; Cooley on Torts, 533 et seq. (5) The relation between the owner of an automobile and his chauffeur in no way differs from that existing between the master and servant generally and is governed by no other rules than the general rules of law governing the relation of master and servant. It is essential to a recovery that it shall be made to appear that the accident occurred while the person in charge of the automobile was using it in the course of his employment and on his master's business. Evans v. Auto. Sup. Co., 121 Mo.App. 277; Lotz v. Hanlon, 217 Pa. 339; Slater v. Thresher Co., 97 Minn. 305, 107 N.W. 133; Patterson v. Kates, 152 F. 481; Reynolds v. Buck, 127 Iowa 601, 103 N.W. 946; Clark v. Buckmobile Co., 94 N.Y.S. 771; Howe v. Leighton, 75 Mo.App. 102; Jones v. Hoge, 92 P. 433; Lewis v. Amorous, 59 S.E. 338. (6) The fact that the master has given permission to his servant or his son to use the machine does not alter the legal relations. Where the agent or servant is using the automobile outside the scope of his employment, and not upon his master's business, no liability is fastened upon the master merely because he had given permission to his servant to use the car. Cunningham v. Castle, 3 N.Y.S. 1057. (7) A master is not liable for the negligent use of every dangerous appliance merely because he has placed same in charge of a servant. Sweeden v. Improvement Co., 125 S.W. 439. (8) The owner of an automobile is liable for the negligent acts of a chauffeur or son only if such chauffeur or son was inexperienced or incompetent and the owner knew or ought to have known such fact. (9) The evidence of the owner and the driver that the driver at the time of the accident was not engaged in any business for the owner, but was about his own business or pleasure, being undisputed, no jury question is raised on that point. Long v. Nute, 123 Mo.App. 204; Mayer v. Benedict, 108 N.Y.S. 228. (10) The court erred in admitting evidence as to the conduct or action of the driver of the automobile after the accident.
Peter J. Carolus and James W. Boyd for respondent.
(1) In reply to appellant's point one, we cite the statute of this state, which prescribes in plain terms what the duties of the driver of a car are. Sessions Acts, 1907, p. 73, et seq. The law relating to the use of automobiles on public streets and highways is clearly stated in the following cases: Sapp v. Hunter, 134 Mo.App. 685, 115 S.W. 463; Hall v. Compton, 130 Mo.App. 675, 108 S.W. 1122; Fulwilder v. Gas Light & Power Co., 216 Mo. 582, 116 S.W. 508; McFern v. Gardner, 121 Mo.App. 1. (2) In addition to the positive violation of our statute relating to the control of motor cars by boys under 18 years of age, we call the court's attention to the law as laid down in volume 21 of the American and English Encyclopedia of Law, second edition, at pages 1057, 1058, and the authorities cited under notes 1 and 2, at page 1058, as follows, to-wit: iv. Liabilities of parent. 1. For torts of child. The general rule is that the parent is not liable in damages for the torts of his minor child . . . unless the acts be performed with the parent's consent, or in connection with the parent's business (1). Where, however, the torts complained of were committed while the child was engaged in the parent's service within the scope of his employment, or where the circumstances show that it was done with the parent's knowledge and by his authority, or with his consent, he is liable (2), Citing Dunks v. Grey, 3 F. Rep. 862; Teagarden v. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332; Sharpe v. Williams, 41 Kan. 56; Lashbrook v. Patten, 1 Duv. (Ky.) 317; Beedy v. Reding, 16 Me. 362; Stohl v. Levan, 39 Pa. 177; Hower v. Ulrich, 156 Pa. 410; Schaefer v. Oterbrink, 67 Wis. 495, 58 Am. Rep. 875. See, also, Cameron v. Heister, 10 Ohio Dec. (Reprint) 651, 22 Cinc. L. Bil. 884. Note 6--The presumption is that a minor child, living with his father and using his team and conveyance in and about the business of such father, is acting on his behalf and under his directions, so as to render the father liable for the tort of the son. Gerhardt v. Swaty, 57 Wis. 24, 14 N.W. 851; Schaefer v. Otterbrink, 67 Wis. 495, 30 N.W. 922, 58 Am. Rep. 975. (3) Joint liability of master and servant. For a tort of the servant committed within the scope of his employment, a joint action may be maintained against master and servant. New Ellerslie, etc., Club v. Stewart, 29 Ky. L. R., 93 S.W. 598; Able v. So. Ry. Cl., 73 S.C. 173, 52 S.E. 962; Railroad v. Chambers, 79 Ala. 338; Whalen v. Railroad, 63 A. 993 (N.J.L.). Where a complaint against a carrier and its employee alleged that "defendants" failed to use reasonable care, etc., and so negligently operated a boat that it collided with a pier, injuring the plaintiff, states a cause of action against defendants jointly, though it also alleges that the boat was under the control of the employee. Whalen v. Railroad, 63 A. N.J.L.; McKinnis v. Railroad, 200 Mo. 347, 98 S.W. 590. Section boss and railway company can be sued jointly when the sole ground of liability of the railroad company is the act of the section boss alone. Railroad v. Roke, 2 Ga.App. 577, 59 S.E. 462. Citing cases in Cent. Dig. vol. 34, sec. 1238, 141 U. S. Sup. Martin v. Railroad: The section boss is personally liable for injury resulting from his negligence and the railroad company is liable for the misfeasance of its agent.
Plaintiff was injured in a runaway accident on one of the public streets of St. Joseph and claims in her petition for damages that her injuries were caused by negligence of defendants in the operation of a gasoline automobile which frightened the horse attached to the buggy in which she was riding and caused him to run away. She prevailed in the trial court where a jury gave her a verdict of one thousand dollars against both defendants and the cause is here on the appeal of defendants from a judgment rendered on that verdict.
The injury occurred about ten o'clock in the morning of June 25, 1908, near the corner of Folsom street and Ashland avenue, both of which are paved streets much used by travelers. The roadway of Folsom street is thirty-six feet wide and, for convenience, we shall speak of its directions as being east and west, though the streets at this place are not laid with cardinal points of the compass. Ashland avenue is twenty-four feet wide and runs at right angles with Folsom street. Plaintiff, who lived at Avenue City, a village northeast of St. Joseph, drove to the city in company with her daughter who was then sixteen years old. They were riding in a buggy and their horse, though spirited, was gentle and had been used by plaintiff and her family as a family horse. Her daughter was driving and they were going south on the west side of Ashland avenue when, as they neared the intersection of Folsom street, the automobile dashed around the corner at high speed and without warning. Its sudden appearance in close proximity to the horse so frightened him that he whirled around to the left, made a complete turn and bolted northward. He had run but a short distance when the vehicle was upset and both occupants were thrown out and injured.
There is a residence at the northeast corner of Folsom street and Ashland avenue and the premises are so much higher than the streets that the automobile could not be seen until it reached the corner, and the horse was startled and scared, not only by the sudden and unheralded appearance of the swiftly running car which came from the west and was turning north, but also by the heading of the machine on the turn in a way to point it towards the horse. Witnesses for plaintiff estimate the speed of the car on the turn at twenty or twenty-five miles per hour and state that its motor made a loud and terrifying noise. While we think that owing to the narrowness of the streets this estimate of the speed must be wide of the real fact, we find the evidence of plaintiff to the effect that the car was running at a high and, under the circumstances, dangerous rate of speed, is substantial. As to the noise, uncontradicted evidence shows that the car was new, was of a standard make, was provided with appliances for muffling the noise of the motor, and that it made no more noise than is usually made by automobiles under similar conditions. Further, we find substantial evidence tending to show that the horn was not sounded as the car approached the corner and that the autoist--the defendant Ernest--was talking to his seat companion and was not looking ahead.
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