Gordon v. Rose

• Decision Date: 29 May 1934
• Docket Number: 6103
• Citation: 54 Idaho 502,33 P.2d 351
• Parties: IRA S. GORDON and ELEANORE GORDON, Husband and Wife, Appellants, v. A. L. ROSE, Respondent
• Court: Idaho Supreme Court

33 P.2d 351

54 Idaho 502

IRA S. GORDON and ELEANORE GORDON, Husband and Wife, Appellants, v. A. L. ROSE, Respondent

No. 6103

Supreme Court of Idaho

May 29, 1934

AUTOMOBILES - INJURY FROM OPERATION - ACTION FOR DAMAGES-PLEADING-LIABILITY OF OWNER FOR NEGLIGENT ACT OF MEMBER OF FAMILY-FAMILY PURPOSE DOCTRINE.

1. As respects demurrer to complaint, whether driver of automobile causing death sued for, was its owner's agent becomes question for court, if complaint pleads enough to destroy presumption of agency arising from ownership.

2. Amended complaint in action for death of boy run over by defendant's automobile, driven by defendant's minor daughter, held to allege cause of action based solely on family purpose doctrine, thereby destroying general allegations of driver's agency for defendant.

3. Generally, parent is not liable for his children's torts.

4. Whether head of family should be held responsible as matter of public policy, for acts of members of his family when driving his automobile with his permission, regardless of their purposes, is for legislature, not courts, to determine.

5. Family purpose doctrine is not rule of law in Idaho for determining liability of automobile owner for acts of members of his family while driving car.

6. Automobile owner, permitting minor over sixteen years old to drive car, is not liable in damages under statute for such driver's negligence, except under doctrine of respondeat superior (I. C. A., sec. 48-903).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Appeal from a judgment dismissing amended complaint upon plaintiffs' failure to plead after the court sustained general demurrer to the amended complaint. Affirmed.

Judgment affirmed, with costs to respondent.

J. H Peterson and Clyde Bowen, for Appellants.

Under the modern rule of pleading, particularly as applicable to motor vehicles, a general allegation of negligence in a complaint is sufficient, whether attacked by special demurrer or otherwise. (Anderson, An Automobile Accident Suit, pp. 49 50, 51, 52; Mathes v. Aggeler & Musser Seed Co., 179 Cal. 697, 178 P. 713; Stein v. United Railroads of San Francisco, 159 Cal. 368, 113 P. 663-666.)

It is a general rule that in an action for injuries resulting from being struck by an automobile, proof that the automobile was owned by defendant at the time of the accident establishes prima facie that the automobile, when driven by another, such other was his agent and within the scope of his employment. (Anderson, An Automobile Accident Suit, pP. 324, 325; Curry v. Stevenson, 26 F.2d 534, 58 App. D. C. 162; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167.)

The complaint in this action is sufficient under the family purpose doctrine. (Benton v. Regesser, 20 Ariz. 273, 179 P. 966; Babbitt, Motor Vehicle Law, 4th ed., p. 922; 7-8 Huddy, Automobile Law, p. 324.)

Merrill & Merrill, for Respondent.

The head of a family is not usually liable for the negligence of a member thereof. (Anderson, An Automobile Accident Suit, sec. 522, and cases there cited; Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A. L. R. 1156.)

On principle and by weight of authority the family purpose doctrine is unsound and should not be adopted in a state where it has not previously been recognized. (Watkins v. Clark, 103 Kan. 629, 176 P. 131; Daily v. Schneider, 118 Kan. 295, 234 P. 951; McDowell v. Hurner, 142 Ore. 611, 13 P.2d 600, 20 P.2d 395, 88 A. L. R. 578; Smith v. Burns, 71 Ore. 133, 142 P. 352, Ann. Cas. 1916A, 666, L. R. A. 1915A, 1130; Wilcox v. Wunderlich, 73 Utah 1, 272 P. 207.)

WERNETTE, J. Budge, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

This is an action for damages for the death of a minor son. The case is before us upon the amended complaint of appellants and the demurrer thereto.

The amended complaint alleges the marital status of the plaintiffs, and that they were the father and mother of Sanford Gordon, a minor; that on the first day of June, 1931, Minnie Rose, the daughter of defendant, a girl about eighteen years old, while driving a family car of defendant, negligently and carelessly ran over and killed Sanford Gordon, while operating said car, the property of the defendant. In paragraph three of said amended complaint the following is alleged:

"Plaintiffs allege that at the time of said accident, and at the time of the driving of said car by said Minnie Rose, she was a member of the family and of the household of said defendant and was living at home with said defendant, and that said car involved in said accident was, as aforesaid, the family car and was owned, provided and maintained for the general use, pleasure and convenience of said family and was being used by said member of his family at the time of said accident; that at said time said daughter, so operating said car, was wholly supported and maintained by said defendant and was herself without property, and was operating and driving said car by the consent, knowledge, acquiescence, approval and direction of said defendant, and was engaged upon the business for which said car was purchased, to-wit: for the general use of the family of said A. L. Rose; that by reason of the aforesaid facts, the said daughter at the time of the accident, and while driving said car, became and was the agent of said defendant, A. L. Rose."

The amended complaint then sets forth the damages sustained, and expenses incurred by reason of the injury and death and prays for general and special damages.

The defendant filed a general and special demurrer to the amended complaint, contending first that the amended complaint did not state facts sufficient to constitute a cause of action and, second, that the same was uncertain and ambiguous, in that paragraph two of the amended complaint alleged that Minnie Rose, "negligently and carelessly ran over and killed Sanford Gordon, the minor son of the parties hereto, while operating said car," but that it was not alleged what plaintiffs would contend constituted the negligence, and neither was it alleged that said general allegations of negligence constitute the same allegations as subsequently alleged in said amended complaint.

The court sustained the demurrer to the amended complaint, giving plaintiffs ten days in which to amend. Upon failure of plaintiffs to further plead the action was dismissed. This appeal is prosecuted from the judgment of dismissal.

Considering the general demurrer to the amended complaint, it is the serious contention of appellants that the complaint states sufficient facts to constitute a cause of action under the rule of agency as announced in Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167, and also that it states sufficient facts under the rule of the family purpose doctrine. In the Willi case this court held that upon proof of ownership of a motor vehicle:

"The fact of ownership alone, regardless of the presence or absence of the owner in the car at the time of the accident establishes a prima facie case against the owner, for the reason that the presumption arises that the driver is the agent of the owner." and is acting within the scope of the agent's employment with the owner. Appellants argue, therefore, that an allegation that gives rise to an implication is sufficient to bring the implication within the direct terms of the pleading; that having alleged in the complaint that respondent was the owner of the automobile driven by his daughter at the time of the accident would, if proven, give rise to the implication or presumption that the respondent was the master and the driver of the automobile was his servant and in the scope of her employment, and therefore sufficient to prove a cause of action; and having alleged such state of facts the complaint is sufficient to state a cause of action, challenged only by general demurrer. Appellants claim that they should not be required to allege any more than they would be required to prove; that "whatever is necessarily implied by a statement directly made or is reasonably to be inferred therefrom is to be treated as averred directly," citing: Connelly Co. v. Schlevter Bros., 69 Mont. 65, 220 P. 103; Cook v. Galen, 83 Mont. 334, 272 P. 250. In this contention made by appellants they entirely lose sight of the law as announced in Willi v. Schaefer Hitchcock Co., supra, regarding the presumption that arises from the ownership of the automobile, above quoted, in that this presumption is rebuttable and that, "where the evidence offered to establish facts which would rebut this presumption is contradictory, the question is one for the jury; but, where the facts so offered are undisputed and uncontradicted, it becomes properly a question for the court." The same rule testing the sufficiency of the proof would control in testing the sufficiency of the complaint. If enough is pleaded to destroy the presumption then the question of agency, "becomes properly a question for the court." While it is alleged in the amended complaint that the automobile was owned by respondent and was driven by his daughter at the time of the accident, yet these allegations are explained and circumscribed by positive allegations in paragraph three, to the effect that at the time of the accident and the driving of said car by the daughter, she was a member of the family and household of respondent and was living at home with him; that the car driven at the time was the family car, owned and provided and maintained for the general use, pleasure and convenience of the family and was being so used at the time of the accident; that at said time such daughter was wholly maintained and supported by respondent, had no...