Baitary v. Smith

Decision Date27 January 1922
Docket Number123.
Citation116 A. 651,140 Md. 437
PartiesBAITARY, to Use of MICHAEL, v. SMITH et al.
CourtMaryland Court of Appeals

Motion for Reargument Overruled March 23, 1922.

Appeal from Superior Court of Baltimore City; James M. Ambler Judge.

Action by Shain E. Baitary, for the use of Herbert S. Michael against Josephine E. Smith and Helen E. Smith. Judgment for the defendant Josephine E. Smith on directed verdict, and for the plaintiff against the defendant Helen E. Smith, and plaintiff appeals from the judgment in favor of the first defendant. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

Walter C. Mylander and Charles M. Armstrong, both of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellant.

Clifton S. Brown and W. Herdman Schwatka, both of Baltimore (W Conwell Smith, John D. C. Duncan, and Duncan & Schwatka, all of Baltimore, on the brief), for appellees.

BOYD C.J.

It is only necessary to state the facts in this case in so far as they will reflect on the liability of the mother, Josephine E. Smith, in order to see that the decisions of this court in Whitelock v. Dennis, 116 A. 68, and Myers v. Shipley, 116 A. 645, decided at the present term, are conclusive of the main question involved in it. At the time of the accident Helen E. Smith, the daughter of Josephine E. Smith, who was 22 years of age, was driving the car and had with her two of her friends, young ladies who were not members of the family, or connected with it in any way which could possibly affect the question. They were on the way to a wedding to which the two daughters and the only son of Mrs. Smith had been invited, but neither the mother, the other daughter, nor the son was in the car. Although Mrs. Smith, who was called by the plaintiff as a witness, was examined as to whether she was invited to the wedding, she testified that she was not, but the invitation was directed to "C. R. Smith and Sisters"- C. R. Smith being her son. It could have made no difference if she had been invited, and we only refer to it to illustrate the extent to which those adopting the family car doctrine seem to go in attempting to hold an owner of a car used for family purposes liable for injuries sustained by the alleged negligence of a member of a family.

The car was purchased by the mother, at the instance of her three children, for the family use, and was driven by either of the three children as was found convenient and desirable. The mother did not drive it, but had the use of it. She had a mortgage which matured, and her children persuaded her to purchase an automobile, and in order to compensate her for loss of the income on the amount invested each of the three paid her $1 a week. If they needed a new tire, they divided the cost between the four, and they paid for such things as gasoline, oil, etc., according to their use of the car. The three children used it without getting special permission from their mother, but they generally let her know when one wanted to use it, so there would be no conflict between them in such use. At the time of the accident Miss Helen was the only member of the family who was using it.

As there is nothing in the facts in reference to the ownership and use of the car which could distinguish this case from Myers v. Shipley, supra, we will not prolong this opinion by repeating what we there said, or again citing the authorities referred to. There was something...

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