Brooks v. Snyder, Gen. No. 40637.

• Decision Date: 05 December 1939
• Docket Number: Gen. No. 40637.
• Citation: 24 N.E.2d 55,302 Ill.App. 432
• Parties: BROOKS ET AL. v. SNYDER ET AL.
• Court: United States Appellate Court of Illinois

302 Ill.App. 432

24 N.E.2d 55

BROOKS ET AL.

v.SNYDER ET AL.

Gen. No. 40637.

Appellate Court of Illinois, First District, Second Division.

Dec. 5, 1939.

Appeal from Circuit Court, Cook County; Chalmer C. Taylor, Special Judge.

Action by Leo Brooks, Ben Kaye, Charles Flamm, Albert Flamm, Gladys Winnick, and Sylvia Winnick against Ernest H. Snyder, Foster L. Duncan, and Bernard Curry for injuries sustained by plaintiffs while riding in an automobile that was owned by the defendant Ernest H. Snyder and was being driven by Foster L. Duncan. From judgment for Leo Brooks for $1,200, for Charles Flamm for $311.03, for Albert Flamm for $300, for Ben Kaye for $100, for Gladys Winnick for $100, and for Sylvia Winnick for $100 against defendants Ernest H. Snyder and Foster L. Duncan, Ernest H. Snyder appeals.

Judgment affirmed. John A. Bloomingston and Henry A. Blair, both of Chicago, for appellant.

Tarnopol, Flamm & Sideman and Ben A. Stewart, all of Chicago, (Irving H. Flamm, of Chicago, of counsel), for appellees.

FRIEND, Justice.

Plaintiffs were injured while riding in an automobile that collided with a car owned by defendant Ernest H. Snyder, who was riding in his car while it was being driven by Foster L. Duncan, another defendant. The cause was heard by the court without a jury, resulting in findings and judgment for plaintiffs and against Snyder and Duncan as follows: Leo Brooks, $1,200; Charles Flamm, $311.03; Albert Flamm, $300; Ben Kaye, $100; Gladys Winnick, $100; Sylvia Winnick, $100. There was a finding of malice against Duncan, but the count charging wilful and wanton misconduct against Snyder was withdrawn at the close of all the evidence at the suggestion of the court. Snyder appeals from the judgments entered.

There is substantially no dispute as to the facts. The accident occurred September 19, 1937, between four and five o'clock in the evening. Snyder's car was in need of repairs and he procured Duncan, a mechanic, who worked in a nearby garage but was off duty that day to make the necessary adjustments. Snyder had never met Duncan before, but had learned of his whereabouts through information obtained at the garage where Duncan was employed. After repairing Snyder's car on Irving Park avenue where it had been parked, Snyder, accompanied by Duncan, drove the car some eight or ten miles on a test run. The work was apparently found to be satisfactory and Duncan was paid for his services. After stopping at a gas station about seven p. m., Snyder then picked up a girl whom Duncan knew, drove her to an address on Division street and returned to the north side, where Snyder and Duncan had dinner together in a restaurant. After dinner Duncan asked Snyder if they could go and get his girl and bring her back home. Snyder consented and said he would drive Duncan, but the latter volunteered to do the driving. Shortly after leaving the restaurant they met a man and woman who were friends of Duncan, and this couple were invited to go along for the ride. It was during the course of this trip with Duncan at the wheel and Snyder sitting beside him that the collision in question occurred. The evidence is clear that Duncan violated traffic signals, which resulted in the collision. No complaint is made as to the conduct of the trial and the only question presented is whether Snyder is liable as the owner of the automobile for Duncan's negligent driving under the circumstances presented by the evidence.

As ground for reversal it is urged by Snyder that he was merely Duncan's guest in Snyder's automobile; that he neither directed nor supervised the driving of Duncan; that the doctrine of respondeat superior did not apply so as to make Snyder liable for Duncan's negligence; and that the court should therefore have found Snyder not guilty and entered judgment accordingly. Plaintiffs, on the other hand, contend that the use of the car at the time of the accident constituted a joint enterprise. The court so found in his oral opinion rendered at the close of the case, and the evidence clearly sustains the finding. With reference to this phase of the case Snyder testified that it was agreeable to him to let Duncan drive, “as long as I was riding;” that “he [Duncan] was just riding with me for pleasure. I had paid him for the work he did;” that “at the end of the [test] ride, we stopped at a filling station and Duncan left the car there. I waited for him; he came back and we got in and came back to the north side. We took his girl friend to some relatives on Division street. He had no car of his own, and I told him it was O. K. to take her there. After we left her, we went back north and stopped and had something to eat.” (Italics ours.) The circumstances indicate that Snyder, apparently having nothing in particular to do after the car had been repaired, acceded to Duncan's suggestions and called for Duncan's girl, picked up the couple hereinbefore referred to, and that he and Duncan were driving around together with Snyder's consent. Although Duncan was at the wheel, Snyder never relinquished the direction and supervision of the automobile.

After reviewing the authorities cited by counsel on both sides, we are impelled to hold that the court properly found Snyder liable for Duncan's negligence. The general rule applied by the courts in the numerous cases cited by plaintiffs appears to be that where an owner occupies the car at the time of the accident he is liable for the negligence of the driver if (1) he has not abandoned his right to control the car or (2) if he exercises or has a right to exercise any control over the driver or the operation of the car, or (3) if the ride is for his benefit or for the mutual benefit of himself and the driver. This rule is set forth in Blashfield's Cyclopedia of Automobile Law and Practice, 1935, Permanent Edition, vol. 5. pp. 66 to 70, § 2930, as follows: “By the weight of authority, the owner of a motor car, present therein at the time of an accident caused by its negligent operation, is liable for injuries resulting though he is not personally at the wheel; the car being driven by one not his servant, but with his permission and in the business of the owner or in a joint enterprise of the owner and the driver. Where an owner is riding in an automobile which is being driven in an improper manner, and the evidence does not show a contractual surrender nor an abandonment of the owner's right to control, the inference is warranted that the owner knew of and permitted the improper operation and he is deemed to have consented to the negligent operation of the machine and the driver's negligence is imputed to him; and if an owner permits some other person to operate his car in which he is riding, whether his wife, child or friend, retaining such control of the car as gives him unrestricted right of direction and control, he will be liable for the driver's negligence.” This rule finds support in Illinois in Gates v. Mader, 316 Ill. 313, 147 N.E. 241. In that case the father was the owner of the car. His...