Boes v. Howell

• Decision Date: 28 May 1918
• Docket Number: No. 2123.,2123.
• Citation: 24 N.M. 142,173 P. 966
• Parties: BOESv.HOWELL.
• Court: New Mexico Supreme Court

24 N.M. 142

173 P. 966

BOES

v.HOWELL.

No. 2123.

Supreme Court of New Mexico.

May 28, 1918.

Syllabus by the Court.

Matters properly pleaded, which are not denied, stand admitted.

One who keeps an automobile for the pleasure and convenience of himself and his family is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.

Appeal from District Court, Chaves County; McClure, Judge.

Action by Bernard Boes against David Howell. Judgment for plaintiff, and defendant appeals. Affirmed.

By the complaint filed in this case, which was instituted in the district court of Chaves county, it was alleged by Bernard Boes, against defendant, David Howell, that defendant was the owner of an automobile, which he permitted his sons, Guy Howell and John Howell, to drive and operate for their pleasure and for the pleasure of defendant's family and for his business; that on the 23d day of November, 1915, while running and operating defendant's automobile, the two sons of defendant passed a wagon wherein plaintiff was driving, coming up from behind the plaintiff and passing the plaintiff in a careless and reckless manner at a high rate of speed and giving no warning of their approach, causing the team which plaintiff was driving to run away, with the result that the plaintiff was injured. By his answer defendant admitted that he is the owner of an automobile, but denied that on the occasion of the alleged accident he permitted or authorized Guy Howell or John Howell to use or drive said car. All of the other material allegations of the complaint were traversed. By further defense in the way of new matter the defendant pleaded contributory negligence. The facts as disclosed by the evidence at the trial, briefly stated, are as follows: On November 23, 1915, plaintiff and his son were driving toward the city of Roswell, and while about 2 miles east of that point, the sons of defendant in the car in question, accompanied by several passengers, passed them on the left side of the road at a speed of 15 miles or more per hour, without giving any warning, which frightened the team of plaintiff, resulting in the neck yoke breaking, which let the wagon tongue down, and the team swerved to the left into a bank at the side of the road, upsetting the wagon and injuring the plaintiff.

Roberts, J., dissenting.

Matters properly pleaded, which are not denied, stand admitted.

O. O. Askren, of Roswell, for appellant.

R. C. Reid and J. D. Mell, both of Roswell, for appellee.

HANNA, C. J.

At the conclusion of plaintiff's case, the defendant moved the court to instruct the jury to return a verdict in favor of the defendant for the following reasons: First, that there had been no proof that the person driving the car was the agent of the defendant; second, if such proof existed there was nothing to show that the driver of the car was the agent of the defendant acting within the scope of his employment. A further ground pertaining to the alleged failure to prove damages was interposed, but for the purposes of this case does not require our consideration. In this connection appellant contends that at the conclusion of the plaintiff's case, when this motion was interposed, the plaintiff had proved, in regard to liability, only that the car which was driven at the time of the accident was owned by the defendant, and that his son, Guy Howell, was driving the same.

[1] By plaintiff's complaint it was alleged that the defendant is the owner of an automobile which he permits his sons, Guy Howell and John Howell, to drive and operate for their pleasure and for the pleasure of the defendant's family and for his business. Defendant's answer in this connection was as follows:

“Defendant admits that he is the owner of the automobile, but denies that on the occasion of the alleged accident that he permitted or authorized Guy Howell to use or drive said car.”

[2] It does not appear that he forbade him to drive the car on the occasion of the accident or on any other occasion. There is no denial of the allegations of the complaint that the defendant permitted his sons to drive and operate for their pleasure and for the pleasure of defendant's family the defendant's car. The fact that he denied that on the occasion of the accident he permitted or authorized his sons to drive the car is not a sufficient denial of the allegation of the complaint. It is fundamental that matters properly pleaded which are not denied stand admitted. 31 Cyc. 207. We therefore have established by the pleadings that the defendant was the owner of the automobile in question, which he permitted his sons to drive and operate for their pleasure and for the pleasure of the defendant's family. A question is raised as to whether or not there is sufficient proof to show that the son driving the car at the time in question was a minor, but we believe that this is sufficiently established by the testimony of a witness, who, when testifying as to the ages of the boys in the car, said that they ranged from 16 to 19 years. It therefore appears that a minor son of the defendant was driving the car at the time of the accident, and that this was by the permission of the defendant. Turning to Berry on Automobiles (2d Ed.) § 653, we quote from the text as follows:

“The rule is followed, in most of the states in which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and his family is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.”

See, also, The Law Applied to Motor Vehicles, §§ 902, 903. An examination of the numerous authorities upon the question of liability in these cases discloses that the mere existence of the relation of parent and child is not sufficient to raise the relation of master and servant, or create agency upon the part of the child so as to render the parent liable for the child's negligence in operating the former's automobile. In a case note found in 50 L. R. A. (N. S.) 59, following the case of Birch v. Abercrombie, a very comprehensive editorial note, supported by authority, points out that:

“The owner of an automobile who maintains it for the general use of his family should be held liable for its negligent operation by one of his children, whom he designates or permits to run it, where the car is occupied and being used at the time of the injury for the pleasure of other members of the owner's family than the child driving it. Under such circumstances the latter is unquestionably acting as the agent or servant of the owner in carrying out the purposes for which the car was bought, as much as if the owner had hired a person outside of the family to act as chauffer.”

In the case of Birch v. Abercrombie, referred to, which is also reported in 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59, the court expressly held that:

“The burden is upon a parent, whose child causes an injury while driving the parent's automobile, to overcome the presumption that the child was driving the vehicle for the owner.”

The Washington Supreme Court further said in the same opinion:

“A daughter, in using her father's automobile for her own pleasure, is his servant in doing so, if he purchased and kept the automobile for the use of his family.”

The facts in the case referred to are closely analogous to the facts of the instant case. See, also, Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970; Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994.

Following the last-mentioned case in L. R. A. there is another extensive note, collecting later authorities and supplementing the note in 50 L. R. A. (N. S.) 60. In this note, and in a number of authorities which we have examined, it is pointed out that a somewhat different question arises where an injury is inflicted by the negligent operation of an automobile purchased for the general use of the owner's family by his child, while the latter, with the express or implied permission of the father, is using it for his own pleasure alone. As pointed out in the last-mentioned note, the parent's liability for the injury caused by the negligent operation of the car by one of his children, whom he designates or permits to run it, is clearer in a case where the child was at the time driving with other members of the family than where driving alone, since the presence of other members of the family tends to show that the car was being used for the purpose for which it as intended, and that the operator was acting as the parent's servant. We do not believe that this suggested difficulty has application to the present case. Two members of the defendant's family were in the car, and, so far as the record discloses, the car was not being used for the pleasure of one member of the family alone. We might add numerous authorities to this opinion, but we agree with the view expressed by the Washington court in the case of Birch v. Abercrombie, supra, which we will quote as follows:

“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.”

There are other assignments of error in appellant's brief, but they are primarily, if not entirely, disposed of by the conclusion at which we have arrived in this opinion.

Finding no error therefore in the record, the judgment of the trial court is affirmed; and it is so ordered.

PARKER, J., concurs.

ROBERTS, J. (dissenting).

The majority opinion follows the rule announced in the case of Birch v. Abercrombie, 74 Wash. 486, 133...