Bradley v. Ashworth

• Decision Date: 05 June 1924
• Docket Number: 6 Div. 104.
• Citation: 211 Ala. 395,100 So. 663
• Parties: BRADLEY ET AL. v. ASHWORTH.
• Court: Alabama Supreme Court

100 So. 663

211 Ala. 395

BRADLEY ET AL. v. ASHWORTH.

6 Div. 104.

Supreme Court of Alabama

June 5, 1924

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages, for injuries to an automobile resulting from collision with a street car, by R. F. Ashworth against Lee C Bradley and J. S. Pevear, as coreceivers of the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Tillman Bradley & Baldwin, A. Key Foster, and J. Murray Barbee, all of Birmingham, for appellants.

S. R Hartley, of Birmingham, for appellee.

SAYRE J.

Plaintiff, appellee, owned an automobile which he used in the practice of his profession as a physician. When the car was not in use by plaintiff, his wife had free use of it for her convenience and pleasure, and, on the occasion in question, after plaintiff, in company with his wife, had driven to his place of business down town, the wife, alone, was driving the car back home when it came into collision with an electric street car operated by defendants as receivers. Plaintiff's wife was returning the car to her home with the purpose, at a later hour, of using it to call upon a relative who was sick at a point some distance away. Plaintiff sued for damage done to his automobile, alleging, to state the case briefly, that defendants' employés in charge of the street car had so negligently managed the same that the collision was caused and plaintiff's automobile wrecked. There was also a count for wanton or willful injury. The defense proceeded in short by consent as under pleas of the general issue, and, as against the charge of simple negligence, the contributory negligence of plaintiff's wife in driving the automobile. Verdict and judgment went for plaintiff. Defendants appeal.

The trial court in effect instructed the jury that, if plaintiff's wife was using the automobile for her own pleasure or purpose, and was not about plaintiff's business, she was not his servant, agent, or employé, and her contributory negligence was not imputable to him, and could not defeat his recovery; actionable negligence on the part of defendants' motorman being proved. Defendants reserved the question for review.

It is suggested on behalf of appellee that this case is determined by the decision in Parker v. Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87. Appellants, on the other hand, ask the court to adopt the "family purpose" doctrine, and thus, in effect, to overrule Parker v. Wilson. There are cases in which it is held that, where the head of a family keeps an automobile for the use and pleasure of his family-and we suppose that, among people of moderate means at least, most automobiles are so intended and kept-the owner is liable for negligence in its operation. The author of "The Law Applied to Motor Vehicles," Babbitt (3d Ed.) § 1178, observes that "this doctrine has strong reasons of convenience and public policy to recommend it, but no basis whatever in the law of agency"-as we held in Parker v. Wilson-"and according to the great weight of authority in this country the owner is not liable on evidence merely that the owner permitted his minor son to operate his car for his own pleasure as it is held that this does not show that the son was the agent of the father acting in the scope of his employment." Like considerations apply, of course, in the case of other members of the owner's family. The cases so holding, including Gardiner v. Soloman, 200 Ala. 115, 75 So. 621, L. R. A. 1917F, 380, Armstrong v. Sellers, 182 Ala. 582, 62 So. 28, Powers v. Williamson, 189 Ala. 600, 66 So. 585, are collected in the footnote. In the text our case of Parker v. Wilson, supra, Arkin v. Page, 287 Ill. 420, 123 N.E. 30, 5 A. L. R. 216, Van Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443, L. R. A. 1917F, 363, Blair v. Broadwater, 121 Va. 301, 93 S.E. 632, L. R. A. 1918A, 1011, Pratt v. Cloutier, 119 Me. 203, 110 A. 353, 10 A. L. R. 1434, and Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127, are commented upon as furnishing correct statements of doctrine. Many cases to the same effect are noted on page 1130 of Ann. Cas. 1918E (Hays v. Hogan, supra). In Erlick v. Heis, 193 Ala. 669, 69 So. 530, and Hudgens v. Boles, 208 Ala. 67, 93 So. 694, the authority of Parker v. Wilson was conceded.

So now without indulging an unnecessary restatement of the law, we are satisfied to stand by that case. It results that, on the case presented by this record, plaintiff was not answerable for the contributory...