Bolman v. Bullene

• Citation: 200 S.W. 1068
• Decision Date: 05 January 1918
• Docket Number: No. 18845.,18845.
• Parties: BOLMAN v. BULLENE.
• Court: United States State Supreme Court of Missouri

200 S.W. 1068

BOLMAN v. BULLENE.

No. 18845.

Supreme Court of Missouri, Division No. 2.

January 5, 1918.

Rehearing Denied February 16, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Walter V. Bolman against Lathrop Bullene. From a judgment for plaintiff, defendant appeals. Reversed.

Hadley, Cooper, Neel & Wright and Cook & Gossett, all of Kansas City, for appellant. J. C. Rosenberger, of Kansas City, and Marvin E. Boisseau, of St. Louis, for respondent.

WHITE, C.

The appellant sued for injuries received by a collision with the defendant's automobile, which was driven at the time by defendant's son-in-law, Russel Throckmorton. Throckmorton had been married to the daughter of defendant something over a year, and at the time of the accident, with his wife and infant child, was living at the home of defendant, it is alleged, as a member of his family. He paid the defendant board for himself and wife, but defendant claimed the small sum paid was merely nominal in comparison with the value of the board.

The evidence shows that the defendant had kept an automobile for some years, and that before her marriage his daughter had been accustomed to drive the machine, and after her marriage she continued to drive it at times. The evidence also shows that sometimes it was driven by Throckmorton. The defendant claimed that he had instructed his daughter and her husband not to use his machine on any occasion except by express permission; but it was shown that Throckmorton had used it on many occasions without express permission, and in fact carried a key to the garage where it was kept. The defendant kept no chauffeur, but did his own driving, and when he and any of his family were taking a ride in the car it appears that he always did the driving. On the day of the injury, defendant's brother, Fred Bullene, was a guest at dinner; Throckmorton and his wife being present. During the meal Throckmorton expressed a desire to return some fishing tackle to a friend, and asked permission of Mr. Bullene to use the car for that purpose. Mr. Bullene, instead of allowing him to take the automobile, told him he (Bullene) would drive it himself for the purpose. Accordingly defendant, his brother, and Throckmorton got into the car, the defendant drove to the place where the son-in-law desired to go, they performed the errand, and defendant drove back to his house. When they drove up to the front, Throckmorton's wife, who had remained at home, met them and said that a friend of Throckmorton's, Dudley Kincaid, had called up to say that a friend of his, Jack Brandt, had broken down at Sixty-Third and Oak streets, and wanted a wrench. Throckmorton then asked the defendant if he could use the car to take the wrench over to Brandt; it being four or five blocks distant. Mr. Bullene told him he could use it for that purpose. Throckmorton asked what he should do with the car when he returned, and Bullene told him to put it in the garage; that he would not want it any more that evening. When Throckmorton arrived at the place of the breakdown, he found that the repair had been made and his aid was unnecessary. Instead of returning to his father-in-law's house, he drove to the home of his friend, Dudley Kincaid, a distance of some three miles from that point, and took Kincaid in the car for the purpose of going to the Commerce Building, which was four or five miles from appellant's house. Before arriving at the Commerce Building, Throckmorton met the car in which the plaintiff was driving, and a collision occurred, in which the plaintiff was severely injured.

The jury found that the injury to plaintiff was caused by the negligence of Throckmorton, and the evidence seems sufficient to support that finding. Respondent presents and relies upon this proposition:

"When one owns and maintains a vehicle for the use and pleasure of himself and family, and an injury is inflicted through the negligence of the person in charge of the vehicle while using it for one of the purposes for which it is kept, the owner is liable; and this is true, whether the person driving the vehicle at the time is a member of the family or a hired chauffeur."

Many authorities are cited in support of the proposition. Division 1 of this court, in the case of Hays v. Hogan (No. 18573) 200 S. W. 286, not yet officially reported, exhaustively reviewed those cases and many others, decided by courts of last resort in several states and by federal courts, in which the liability of the owner of a vehicle for injuries caused by the...