Arkin v. Page

• Decision Date: 15 April 1919
• Docket Number: No. 12529.,12529.
• Citation: 123 N.E. 30,287 Ill. 420
• Parties: ARKIN v. PAGE.
• Court: Illinois Supreme Court

287 Ill. 420

123 N.E. 30

ARKIN

v.PAGE.

No. 12529. ^*

Supreme Court of Illinois.

April 15, 1919.

Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Kickham Scanlon, Judge.

Action by Ben H. Arkin, administrator of Annie Marie Christiansen, deceased, against Seth H. Page, for damages for wrongful death. From a judgment of the Appellate Court affirming a judgment of the circuit court in favor of the plaintiff and against the named defendant, the latter brings certiorari. Reversed and remanded.

Cartwright, Farmer, and Carter, JJ., dissenting.

Landon & Holt, of Chicago (Robert N. Holt, of Chicago, of counsel), for plaintiff in error.

Thomas D. Nash and J. A. Arkin, both of Chicago (Michael J. Ahern, of Chicago, of counsel), for defendant in error.

DUNN, J.

On June 24, 1914, Annie Marie Christiansen, a little girl 3 1/2 years old, was run over by an automobile on one of the streets of the city of Chicago and received injuries from which she died. Her administrator brought suit to recover damages for her death against George J. Page, the driver of the car, and Seth H. Page, its owner. On the trial the plaintiff dismissed the action as to George J. Page and recovered a judgment for $1,700 against Seth H. Page, who appealed to the Appellate Court, where the judgment was affirmed. Upon the petition of Seth H. Page a writ of certiorari was awarded, and the record has been brought to this court for review.

George J. Page is the son of Seth H. Page, and in June, 1914, was 20 years old. At the time of the accident he was on his way from his home to the Lewis Institute for the purpose of seeing if he could register in a course of study at the summer school. He was alone in the automobile, which he had taken from the garage at his home without telling anybody that he was going to take the car out or that he was going to the Lewis Institute. He had not talked with his father about going to the school or the question of paying tuition, which he expected to pay himself out of money of his own which he had in the bank. The automobile belonged to his father and was bought in 1911. The family consisted of the father and mother, the young man, and his sister. George had learned to drive a car the year before the automobile was bought, and during the first year that his father owned the car he was the only one of the family who drove it. Later both his father and sister learned to drive. In June, 1914, all the members of the family drove the car except the mother, and when she went out in it one of the other members of the family would drive. George had the whole mechanical care of the car. The father knew that George was in the habit of taking out the car, and, though he had not said either that he might or might not take it out at any time, he did not object to his taking it out, and it is to be inferred that George took the car whenever he wanted to, when it was not it use.

The defendant asked the court to instruct the jury to find a verdict in his favor, and it is argued that there is no evidence in the record of any negligence in the management of the car. Other questions also are argued; but the important question in the case is whether, assuming that negligence was shown in the driving of the machine, the plaintiff in error is liable for that negligence.

A parent is not liable for the tort of his minor child merely from the relationship. There is no evidence or claim that George J. Page was not a competent chauffeur. An automobile is not so dangerous an agency as to make the owner liable for injuries caused by it to travelers on the highway, regardless of the agency of the driver. Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535,21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670;Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016,26 L. R. A. (N. S.) 382,19 Ann. Cas. 1227;Jones v. Hoge, 47 Wash. 663, 92 Pac. 433,14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915. The owner of an automobile who merely permits another to use it for his own purposes is not liable for the negligence of the borrower in the use of the machine. Hartley v. Miller, 165 Mich. 115, 130 N. W. 336,33 L. R. A. (N. S.) 81. The owner of an automobile is not liable for an injury occasioned by the negligent use of the machine by his servant if the servant was at the time at liberty from the service of his master and not engaged in doing his master's business but was pursuing his own interests exclusively. Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656;Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133,5 L. R. A. (N. S.) 598.

The liability of Seth H. Page, if any, must rest upon the agency of George J. Page. Is the owner of an automobile, who has provided it for the use of his family for their pleasure, liable for an injury caused through the negligent driving of the automobile by a member of the family while using it for some personal purpose of his own? This question has arisen in many cases and the decisions of the courts have been directly contrary, though all agree that the liability, if any, must rest upon the relation of master and servant between the driver of the automobile and the owner; that is, upon the fact that the driver of the automobile was at the time engaged in doing the owner's business. Those courts which have held the owner liable have done so on the theory that, when a father has bought an automobile for the pleasure of the family, he has made it his business to furnish entertainment for members of his family, and therefore, when one of them was permitted to use the automobile, even for his own personal and sole pleasure, he was carrying out the purpose for which it was owned and so was using it in the owner's business, who was therefore the principal and liable for the agent's neglect. Such was the view of the Supreme Court of Washington in Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020,50 L. R. A. (N. S.) 59, which holds that a daughter driving, for her own pleasure, her father's car, kept for the use of the family, is his servant, for whose negligence in operating the car he is liable. It was said that such use of the car was in furtherance of the very purpose for which the car was owned and was used by one of the persons by whom it was intended that purpose should be carried out, and that the car was in every just sense being used in the owner's business by his agent.

‘It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair-that is, his business-and any one driving the vehicle for that purpose with his consent, express or implied, whether a memberof his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one as well as by all. In this there is no similitude to a lending of a machine to another for such other's use and purpose unconnected with the general purpose for which the machine was owned and kept.’

Other cases in which, under varying conditions, a parent has been held liable for the negligence of his child in the operation of the parent's car owned and used for the family convenience and pleasure, are McNeal v. McKain, 33 Okl. 449, 126 Pac. 742,41 L. R. A. (N. S.) 775;Stowe v. Morris, 147 Ky. 386, 144 S. W. 52,39 L. R. A. (N. S.) 224;Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091,51 L. R. A. (N. S.) 970;Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487;Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994;King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293;Crittenden v. Murphy (Cal. App.) 173 Pac. 595. In some of these cases the child was driving with other members of the family, so that the question is not exactly the same as that presented here and in Birch v. Abercrombie, supra, and the distinction is noticed in McNeal v. McKain, supra, where, in referring to the case of Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, which held that where a father purchases an automobile for the use of his family and their pleasure and his minor son uses the car for his own pleasure, having in it neither any members nor any guests of his father's family, the relation of master and servant exists in the operation of the car by the son for his own pleasure, the Supreme Court of Oklahoma says that it is not to be understood as approving the length to which the rule is extended in that case, since it was not essential to determine that question in order to dispose of the case before the Oklahoma court. The doctrine of Daily v. Maxwell, supra, and of other cases in the Missouri Court of Appeals, was later overruled by the Supreme Court of Missouri in Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127, as unsound in principle and unsupported by the weight of authority; the court saying that--

‘After a careful consideration of all the authorities cited, we have reached the same conclusion, and hold that the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained thereby, through the negligence of his minor son while operating the same on a public highway, in furtherance of his own business or pleasure; and the fact that he had his father's special or general permission to so use the car is wholly immaterial.’

The cases cited by the defendant in error fully sustain the rules of law under which he claims the right to recover. On the other hand, there are many authorities which hold precisely the contrary. The doctrine announced in Hays v. Hogan, supra...