Benton v. Regeser

• Decision Date: 16 April 1919
• Docket Number: Civil 1653
• Citation: 20 Ariz. 273,179 P. 966
• Parties: R. L. BENTON, Appellant, v. JULIUS REGESER, Appellee
• Court: Arizona Supreme Court

179 P. 966

20 Ariz. 273

R. L. BENTON, Appellant, v. JULIUS REGESER, Appellee

Civil No. 1653

Supreme Court of Arizona

April 16, 1919

APPEAL from a judgment of the Superior Court of the county of Pima. A. G. McAlister, Judge. Affirmed.

Mr Francis Hartman and Mr. R. W. Sprague, for Appellant.

Mr. E B. Frawley, Mr. A. R. Connor and Mr. John H. Campbell, for Appellee.

OPINION

BAKER, J.

This is an action to recover damages for injuries sustained by the plaintiff, Julius Regeser, by being struck by an automobile owned by the defendant, R. L. Benton, which at the time was being driven by his minor son, Bryan Benton. Both father and son were made defendants in the complaint, but during the trial the action, on plaintiff's motion, was dismissed as against Bryan Benton. The trial resulted in a verdict for plaintiff in the sum of $875. There was a motion for a new trial, which was overruled by operation of law, and from the judgment on the verdict the defendant brings this appeal.

The complaint charges that the plaintiff was riding his bicycle along the north side of Fourteenth Street at or near its intersection with Stone Avenue, in the city of Tucson, and that an automobile owned by the defendant, R. L. Benton, but driven by his minor son, Bryan Benton, abruptly turned into Fourteenth Street from Stone Avenue, and struck the plaintiff, knocking him down and dragging him across the street and injuring him. The negligence charged is that Bryan Benton, the minor son, in turning into Fourteenth Street, cut the corner of the street, in violation of an ordinance of the city requiring that all vehicles, before turning to the left from one street into another, should pass to the right and beyond the intersection of the streets. The complaint further charges that Bryan Benton, the minor son, was acting as the agent of his father, the defendant, R. L. Benton, and was operating the car at the time of the accident in the business of his father.

The answer of the defendant denies ownership of the automobile; denies also any negligence on the part of his minor son, Bryan Benton, in handling the machine at the time of the accident. The answer further denies the allegations upon which the responsibility of the defendant is sought to be based. The answer contains also a plea of contributory negligence in that the plaintiff was riding his bicycle at the time of the accident on the south or left-hand side of Fourteenth Street, contrary to an ordinance of the city. The case went to the jury upon the issues formed by the pleadings.

The evidence clearly establishes the fact that the defendant, R L. Benton, was the owner of the automobile. No more will be said about that. Nor is it necessary to make any exhaustive review of the testimony relating to the negligence of the defendant's son, Bryan Benton, in driving the automobile at the time of the accident, or the testimony relating to the alleged contributory negligence on the part of the plaintiff. The testimony conflicts sharply upon both of these points. Both were questions for the jury. We have so often decided that a verdict or judgment will not be disturbed on appeal where the testimony is conflicting that it would be a mere work of supererogation to repeat it.

The real controversy in the case is whether the defendant can be held liable for the damages under the doctrine of respondeat superior. The question, of course, depends upon facts proven in the case.

It is fairly deducible from the evidence that the automobile was kept and maintained by the defendant, R. L. Benton, for the use of the members of his family, and for their pleasure and convenience. Different members of the family drove the automobile as they pleased. The minor son, Bryan Benton, who was driving the machine at the time of the accident, had been accustomed or in the habit of driving it with the defendant's consent, express or implied, for more than a year. He wuld use it at times for his own pleasure and convenience and at other times for the pleasure and convenience of other members of the family. On the morning of the accident the young son had taken his sisters to church in the machine and had later gone to another church to bring his brother home, and, failing to find his brother, was returning home alone when the accident occurred.

The question whether or not, under the facts above set forth, a parent is to be held liable for the negligence of his minor son, has never been decided by the courts of Arizona, although there are a number of decisions upon the question in other jurisdictions.

In Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59, 133 P. 1020, a man and wife owned an automobile which was purchased and kept for the use of the family, and it was customary for the members of the family to drive it at their pleasure. On a certain day, when the man and wife were absent from home, the daughter entertained a number of friends at luncheon. In taking them home in the automobile, she negligently struck and injured a woman on the highway. In a suit for damages, the jury found for the plaintiff against both the girl and her parents, and this finding was held by the supreme court to be authorized by the evidence. In the opinion ELLIS, J., said:

"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 member of his family or another, is his agent."

And again Judge ELLIS said:

"We think that, both on reason and authority, the daughter in the present instance should be held the agent of her parents in the use of the automobile. Any other view would set a premium upon the failure of the owner to employ a competent chauffeur to drive an automobile kept for the use of the members of his family, even if he knew that they were grossly incompetent to operate it for themselves. The adoption of a doctrine so callously technical would be little short of calamitous."

In McNeal v. McKain, 33 Okl. 449, 41 L.R.A. (N.S.) 775, 126 P. 742, a father bought an automobile for the pleasure and comfort of himself and family; his minor son, who was a member of his family, being authorized to use it at any time for that purpose. It was held that the son in taking it out for the pleasure of himself and sisters with a friend who was a guest of the father's family, was a servant or agent of the father within the meaning of the rule as to liability of a principal for the torts of an agent or servant, and was not performing a service independent of his father, and that the latter was liable for his negligence in driving the machine. In the opinion WILLIAMS, J., said:

"Vehicles and motorcars may be used, not only for the business of the master for profit, but also in his business for pleasure. If Paul, the minor son of the plaintiff in error, had been driving his father's carriage (whilst he was a member of his family) in which were contained his sister and a guest of his father's house, the same being done by him with the express or implied consent of his father, the relation of master and servant would exist, and the father would be liable for the negligent acts of the minor son whilst engaged in the driving of the carriage, and the same rule is supported by authority as to motor cars."

In Stowe v. Morris, 147 Ky. 386, 39 L.R.A. (N.S.) 224, 144 S.W. 52, a motor car was kept by a man for the comfort and pleasure of his family, including a minor son and daughter as members of it. They had the right to use it as often as and when they liked. On the occasion in question the son took the car at his own volition, and at his suggestion carried his sister and three other ladies for a ride. While he was driving the machine he carelessly ran down and injured a boy on a bicycle. The father was held to be liable on the ground that, the machine, having been provided for the comfort and pleasure of the family, and the son having been given the right to use it, he was treated as the servant of his father when operating it (though without a special permission on that occasion) for the entertainment of his sister and her friends. In the opinion WINN, J., said:

"So in the case at bar the father had provided his family with this car as a means of recreation and amusement; and the son, in the use of the car for that purpose, was not performing an independent service of his own, but was carrying out what, within the spirit of the matter, was the business of the father."

For other cases of like import, see Daily v Maxwell, 152 Mo.App. 415, 133 S.W. 351; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A. (N.S.) 970, 146 N.W. 1091; Guignon v. Campbell, 80 Wash. 543, 141 P. 1031; Griffin v....