Blair v. Brd.Water

• Decision Date: 20 September 1917
• Citation: 93 S.E. 632
• Parties: BLAIR. v. BROADWATER.
• Court: Virginia Supreme Court

93 S.E. 632

(121 Va. 301)

BLAIR.

v.BROADWATER.

Supreme Court of Appeals of Virginia.

Sept. 20, 1917.

Error to Circuit Court, Scott County.

Action by C. C. Blair against C. C. Broadwater. Judgment for defendant, and plaintiff brings error. Affirmed.

W. S. Cox and J. P. Corns, both of Gate City, for plaintiff in error.

Coleman & Carter, of Gate City, for defendant in error.

WHITTLE, P. Plaintiff in error, Blair, while walking along a public highway near Gate City, was struck by an automobile owned by Broadwater and operated by his daughter, a minor 19 years of age, and brought this action to recover damages from the father for the alleged negligence of his daughter.

The evidence showed that Broadwater bought and kept the car for the use and pleasure of himself and family. He was a deputy sheriff, and also used the car sometimes about the discharge of his official duties. The daughter was a careful and experienced driver, and on the day of the accident she sought and obtained permission from her father to use the car that afternoon for the pleasure and entertainment of herself and her cousin. It affirmatively appeared that the daughter was not using the car on any errand or business of the father, but was driving it alone for the pleasure and entertainment of herself and friend.

The controlling question in the case is presented by opposing instructions requested by the plaintiff and defendant, respectively. The instruction offered by the former embodied the proposition, that if the defendant purchased the automobile for the use and pleasure of himself and family, and at the time of the accident his daughter was a member of his family and under 21 years of age, and was using the automobile for her own pleasure and the entertainment of her friend, with the knowledge and consent of the defendant, then the defendant was liable for the negligence of his daughter to the same extent and in like manner as if he personally, at the time of the accident, had been driving the automobile. The opposing instruction requested by the defendant, in effect, was that, in order to render the defendant liable for the negligence of his daughter, it must have appeared by a preponderance of the evidence that, at the time of the accident, she was operating the automobile in transacting some business, or in the management of some affair, of the defendant, and by his authority.

The court rejected the prayer of the plaintiff, and gave the instruction requested by the defendant, which ruling resulted in a verdict and judgment for the defendant.

Two theories are advanced why the owner of an automobile should be liable for injuries inflicted upon third persons by his minor child while using the machine, with his consent, for the child's own business or pleasure, namely:

(1) Because the parent is responsible for intrusting a dangerous machine to the hands of his child. This liability, it will be observed, does not depend upon the child's negligence, but upon that of the parent in permitting the child to use a dangerous instrumentality.

(2) The second theory proceeds upon the assumption that, as the parent originally purchased the machine for the use and pleasure of the family, the use of it by the child with the parent's permission for its own pleasure is but applying it to the business for which it was bought, and therefore the child's use of it was for the parent's business.

The first proposition is sufficiently answered by the decision of this court in the recent case of Cohen v. Meador, 119 Va. 429, 89 S. E. 876, where it is held that:

"An automobile is not such a dangerous machine or agency as to make applicable to it the rules requiring extraordinary care in the use and control of instrumentalities which are dangerous per se."

The second proposition is discussed in Doran v. Thomsen, 76 N. J. Law. 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 667, as follows:

"It bases the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child.

This proposition ignores an essential element in the creation of that status as to third persons, that such use must be in furtherance of, and not apart from, the master's service and control, and fails to distinguish between a mere permission to use and a use subject to the control of the master and connected with his affairs. The reason for liability is founded upon the idea of control which a master has over his servant. The court, although attempting to rest the liability upon the relation of master and servant, yet actually tested the liability by the fact that she was intrusted with the operation of the machine for her own pleasure, if purchased for that object, whereby she ipso facto became a servant. So that the charge thus in fact left the legal relationship of master and servant out of account, and raised it in name only, because the daughter was allowed to drive the machine. In this there was also error."

So, also, in Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443, it is said:

"It has always been supposed that a person who was permitted to use a car for his own accommodation was not acting as agent for the accommodation of the owner of the car. Reilly v. Connable, 214 N. Y. 580, 108 N. E. 853, L. R. A. 1910A, 954, Ann. Cas. 1916A, 656. The attempt is made, however, to reconcile these apparently contradictory features of this proposition by the assertion that the father had made it his business to furnish entertainment for the members of his family, and that therefore, when he permitted one of them to use the car, even for the latter's personal and sole pleasure, such one was really carrying out the business of the parent, and the latter thus became a principal and liable for misconduct. This is an advanced proposition in the law of principal and agent, and the question which it presents really resolves itself into the one whether, as a matter of common sense and practical experience, we ought to say that a parent who maintains some article for family use, and occasionally permits a capable son to use it for his individual convenience, ought to be regarded as having undertaken the occupation of entertaining the latter, and to have made him his agent in this business, although the act being done is solely for the benefit of the son. That really is about all there is to the question. Not much can be profitably said by way of amplification or in debate of the query whether such liability would rest upon reasonable principles, or whether it would present a case of such theoretical and attenuated agency, if any, as would be beyond the recognition of sound principles of law as they are ordinarily applied to that relationship. The question largely carries on its face the answer, which ever way to be made. Unquestionably, an affirmative answer has been given by the courts of some states."

The case of Cohen v. Meador, supra, though differing in some of its facts, is closely in point to the one in judgment and very instructive. The action was against the father, who owned the automobile, and his adult son, who was driving it, to recover damages for personal injuries resulting from the fright of a horse, imputed to the negligence of the son. In the trial court there was a verdict and judgment against both defendants; but on writ of error this court reversed the judgment as to the father, and affirmed it against the son. Kelly, J., in discussing the question of the father's liability, said:

"The testimony of the younger Cohen, which in this respect is not contradicted, is that the Cohen family had just returned from Big Stone Gap; that he had driven them in the car; that on his return he left his 'father and mother and family' at the store; * * * that with his two small brothers he had started to put the car up, when he met two friends whom he invited to go with him for a ride; that they accepted, and he was taking them towards West Norton when he struck the horse; that he supposed his father thought he had taken the car to put it up; and that his father did not know that he had the car out at that time. It further appears that E. H. Cohen, up to the time of the accident, had done practically all of the driving of the car for his father and the family.

"In this state of the evidence, we do not think the judgment against J. Cohen can be upheld. The authorities seem to have established the doctrine that an...