Ambrose v. Young

Decision Date24 November 1925
Docket Number(No. 5386)
Citation100 W.Va. 452
PartiesBessie M. Ambrose v. W. J. Young
CourtWest Virginia Supreme Court

1. Master and Servant Owner of Family Automobile Liable for Son's Negligence.

Where a person allows his son, who is a member of his family, to drive an automobile which he maintains for the comfort, convenience, pleasure, entertainment and recreation of his family, whereby the son negligently injures another in his person, the owner is liable; the son while so driving is acting in the furtherance of the owner's purpose, being thereby the servant of the owner, (p. 455.)

(Motor Vehicles, 28 Cyc. p. 3 8.)

2. Highways Running Automobile at Unlawful Speed Negligence, Rendering Wrongdoer Liable for Such Injuries as Are Proximate Result of Illegal Speed.

The running of an automobile on the public highways of this state at an excessive rate of speed in violation of a statute is of itself negligence, but the wrongdoer is only liable for such injuries as are the proximate result of such illegal speed, (p. 460.)

(Motor Vehicles, 2 8 Cyc. pp. 37, 3 8.)

3. Trial Testimony Volunteered by Witness That Automobile Owner Was Protected by Indemnity Insurance Held Not Reversible Error.

Testimony volunteered by a witness in such case to the effect that the defendant was protected by indemnity insurance is not reversible error where it clearly appears that counsel for the plaintiff did not solicit such testimony and could not have anticipated the objectionable answer of the witness, and where the court instructed the jury to disregard it. (p. 457.)

(Appeal and Error, 4 C. J. § 2974.)

4. Evidence Statement by Driver of Car, Before Leaving Scene of Collision, as to His Speed, Held Admissible as Res Gestae.

In this case a declaration by the driver of the car of the defendant made on the scene of the collision within twenty minutes after the accident and before he had left the scene, that "he [Young] was driving at the rate of forty-five miles an hour when he came over Butler Hill," which was about an eighth of a mile from the place where the cars collided, is admissible in evidence as a part of the res gestae, (p. 458.)

(Motor Vehicles, 28 Cyc. p. 47 [Anno.]).

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Jefferson County. Action by Bessie M. Ambrose against W. J. Young. Judgment for plaintiff, and defendant brings error.


H. II. Emmert, for plaintiff in error.

George M. Beltzhoover, Jr., and Kilmer & Byrer, for defendant in error.

Woods, Judge:

The defendant prosecutes this writ of error from a judgment of the circuit court of Jefferson county entered against him for the sum of $2,000.00, for personal injuries sustained by the plaintiff in an automobile accident.

On the night of May 17, 1924, the plaintiff was returning home from Charles Town in a Ford touring car, which was being driven and operated by her husband, along the historic state highway in the direction of Harper's Ferry, when the car wTas hit by a Hudson coach, which was being driven by one William Young, the sixteen year old son of the defendant. He was accompanied by a young lady, who was also under age. He had driven to Harper's Ferry that evening and was returning to Charles Town, where he resided with his father. The place;, of the accident is a few hundred feet from the foot of a four per cent grade and on. a straightaway which continues for a distance of 400 feet to the top of the hill, and approximately 1, 000 feet in the other direction. The plaintiff and her husband were coming down the grade at about 15 or 20 miles per hour, on the right-hand side of the road, and claim that the Hudson car w*as being driven at a rapid rate of speed according to the husband, "running around 40 miles an hour" and the wife, "hit us that quick quick as lightning.'' According to Mr. Ambrose the Hudson struck the Ford "around along toward the back fender, just turned right up on end and pulled it right on over." Harry D. Miller, a mechanic, called as a witness for defendant, in testifying as to the condition of the Ford after the accident, said: '' The front left fender was practically torn off. Front wheel, the axle was torn off entirely. Radius rods torn off. Front right fender battered up. Rear left fender mashed doivn against the wheel in such a way that we\ had to tie it up before ive could move the car. Running board mashed up shield windshield broken. Several other small items.'' On cross-examination he was asked: "If you knew that this automobile had been struck by a Hudson car coming at 40 or 50 miles an hour, car weighing 3800 lbs., could you account for the condition in which you found the car that you saw, as to the damage, general damage?" To this he answered: '' Yes, sir, I believe that would pretty near do it." The Hudson after the impact, veered further to its left and ran a distance of 75 or 100 feet up the grade, smashing through a fence and knocking down a post before it finally stopped. Mr. Clipp, a garage man, another witness for defendant, testified that Mr. Young hired him to get his car in. That he found the front end of the car through the fence, a part of it buried in the bank; that the left front wheel was broken and the axle bent; that he had to use a crane to get the car out. Kerns, the state patrolman, was called to the scene, arriving there within fifteen minutes after the accident. He measured the width of the travelled portion of the road to be 16 feet, and testified that from indications on tin; road the Hudson car was some 18 inches or more over on plaintiff's side of the road when it struck the rear end of the Ford car. There is no controversy over the fact that the Hudson ran into the Ford; and no evidence that the Ford ran into the Hudson. There is, however, some controversy as to the location on the road of the point of impact between the two cars. J. AY. Young testified that he was the owner of the Hudson ear; that on the night of the accident that his son, James, had permission to use the car; that he maintained this car for the pleasure and convenience of himself and family; and that his son had been in the habit for some time prior to the accident of using the car by himself and in company with such friends and guests as he chose to invite to ride with him. As a result of this accident one of plaintiff's ribs was fractured and the coccyx was separated from the sacrum. She also received several bruises. Plaintiff testified that she has been a nervous wreck since the accident, and is in agony all the time.

Counsel for defendant contends in his brief that the court erred in: (1) refusing to sustain the demurrer to the declaration; (2) refusing to discharge the jury upon the testimony of witness Kerns that the defendant was insured; (3) admitting testimony of a conversation held between a witness and the driver of the ear as to the speed he was driving the car; (4) giving instructions for the plaintiff; (5) refusing instructions at the request of the defendant; and (6) denying defendant a new trial.

1. Is the declaration sufficient? It is alleged that the first count is not sufficiently definite, for the reason that it does not allege that the automobile at the time of the accident was being operated upon the business of the defendant, The family doctrine with respect to the use of an automobile by a member of a family was first announced by this court in Beard v. Davis, 86 W. Va. 437, to the effect that where one owns and maintains it for the comfort, convenience, pleasure and recreation of his family and instructs its management to any member thereof, such member will be regarded as the agent or servant of the owner, making him liable in damages for injuries sustained by a third person from the negligent management of such machine on the public roads by such agent or servant. This has been followed in Jones v. Cook, 90 W. Aa. 710, and Aggleson v. Kendall, 92 W. Va. 138. The first count contains the averment that the automobile was "maintained and furnished for the use, comfort, convenience, pleasure, entertainment and recreation of himself and the several members of his family, and which said automobile the defendant permitted the several members of his family to use, and they had been accustomed to use the defendant's said automobile for the purpose aforesaid whenever they, or any one of them, desired to use the said automobile, and when the said automobile was not in actual use by the defendant, for sometime prior to the institution of this suit * * * and which said automobile of the defendant, on the day and year last aforesaid, in the county aforesaid, was then and there in the possession, care and direction of one James Young, son of the defendant, who resided with his father, and said automobile of the defendant was then and there driven and operated by the said son of the defendant, over, along and upon the said public and common highway, * * * in accordance with the custom and privilege accorded said son by the defendant, his father, as hereinbefore set forth." Then follows the allegation to the effect that while the plaintiff was riding in the automobile of her husband, which was being driven by him with all due care, that the said defendant, by his son, "then and there so improperly, carelessly, recklessly and negligently drove and managed the automobile of the defendant that, by and through the improper, careless, reckless and negligent conduct of the defendant, by his said son, the said automobile of the defendant then and there ran into and struck with great force and violence upon and against the said automobile of the plaintiff's husband, * * *" thereby causing the injury complained of. These allegations are sufficient to show that in legal effect the son was upon the business of Ins father, the defendant. The doctrine of agency is not confined to merely commercial transactions, as shown by the cases cited,...

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