Rounds v. Phillips

• Decision Date: 16 January 1935
• Docket Number: 83.
• Parties: ROUNDS v. PHILLIPS ET AL.
• Court: Maryland Court of Appeals

177 A. 174

168 Md. 120

ROUNDS v. PHILLIPS ET AL.

No. 83.

Court of Appeals of Maryland

January 16, 1935

Appeal from Circuit Court, Wicomico County; Jno. R. Pattison, Joseph L. Bailey, and Robt. F. Duer, Judges.

Action by Laura D. Rounds, administratrix of the estate of Robert Lee Rounds, deceased, against William H. Phillips, Sr., and another. Judgment for defendants, and plaintiff appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and URNER, OFFUTT, and SLOAN, JJ.

F. W C. Webb, of Salisbury (Woodcock & Webb, Carroll E. Bounds and William W. Travers, all of Salisbury, on the brief), for appellant.

Clarence W. Miles and Seymour O'Brien, both of Baltimore (Long & Johnson and Miles, Bailey & Williams, all of Salisbury, on the brief), for appellees.

URNER Judge.

The declaration in this case is for the same alleged cause of action as that considered, on appeal from a judgment for the defendants on demurrer, in 166 Md. 151, 170 A. 532. A reversal of the judgment then appealed from was followed by a trial of the present suit in the lower court, with the result that a verdict for the defendants was directed. The principal question on this appeal is whether the evidence was legally sufficient to charge the defendants, or either of them, with actionable liability for the negligence of their minor son in causing the accident in which he and the plaintiff's son lost their lives. In addition to an exception to the instruction that the proof was legally inadequate to support any recovery in the case, there were a number of exceptions to rulings on the admissibility of evidence.

The averments of the present declaration are essentially similar to those quoted in the opinion by Judge Digges on the former appeal. The accident described in the declaration occurred about half past 5 o'clock on the morning of April 13 1933, when the nineteen year old son of the defendants, driving a Buick automobile at an excessive speed, on his return from a dance to his parents' home, negligently allowed the car to come into collision with a milk delivery truck which the plaintiff's son was operating. The suit is by the mother, as administratrix of her son's estate, for the resulting injury which he consciously suffered before his death, and for the damage to his motortruck.

In the former opinion the ground of liability asserted against the defendants is thus stated (166 Md. 160, 170 A. 532, 535): "The theory upon which the plaintiff seeks to recover against the defendants is that the defendants permitted, or failed to prohibit, the use of an automobile by their minor son, which son they knew, or should have known from facts known to them, was negligent, reckless, and incompetent in the operation of automobiles. The declaration alleges that the appellant's decedent was killed and his property damaged by the negligent and reckless use of the automobile by the deceased son of the defendants. The appellant does not seek recovery upon the theory that the negligence of the defendants' deceased son is imputable to the defendants, or that the said son was the agent or servant of the defendants; nor does she attempt to invoke the 'family car doctrine,' or any other relationship which would make the principle respondeat superior, apply. On the contrary, the theory upon which the declaration is drawn entirely eliminates vicarious negligence, and rests solely upon the primary negligence of the appellees themselves in permitting their son, alleged to have been habitually reckless, negligent, and incompetent in the operation of automobiles, to be in possession of and operate the Buick automobile described in the declaration at the time of the accident, when that habitual negligence, recklessness, and incompetence was known to the appellees, or should have been known to them from facts of which they had knowledge. In other words, the plaintiff invokes the principle involved in Restatement of the Law of Torts, part IV, Negligence, chap. 2, § 260: 'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him, should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.' The group of the American Law Institute delegated to formulate and restate the principles contained in the law of torts, as gathered from previous authoritative statements of the courts and text-writers dealing with that subject, have enunciated the principle sought to be invoked in this case in the language above quoted."

The opinion, on the former appeal, after a review of decisions supporting the principle formulated in the Restatement, expressed the view that "the facts alleged in the declaration, and admitted to be true for the purpose of the decision on demurrer, are such as to create liability on the part of the defendants." Upon that subject the opinion further said (166 Md. 167, 170 A. 532, 538):

"It has been

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