Bryan v. Schatz

• Decision Date: 23 September 1949
• Docket Number: 7139.
• Citation: 39 N.W.2d 435,77 N.D. 9
• Court: North Dakota Supreme Court

39 N.W.2d 435

77 N.D. 9

BRYAN et al. v. SCHATZ et al.

No. 7139.

Supreme Court of North Dakota

September 23, 1949

Rehearing Denied Oct. 31, 1949.

Syllabus by the Court.

1. When the head of a family provides an automobile for the use and pleasure of the members of the family and permits them to use it at will, they become the agents of the head of the family for the purposes of such use which includes their own personal pleasure and when they are so using the automobile the head of the family is liable to respond in damages for injuries resulting from their negligence under the doctrine of respondeat superior.

2. In determining the liability of the owner of an automobile under the family purpose doctrine, the existence of blood or marital relationship between the driver and the owner is not determinative of the owner's liability. Neither is the minority of the driver the test. These matters are but circumstances to be considered along with other facts in the case.

3. The presumption that one who operates an automobile is doing so by virtue of the authority of the owner is rebuttable and it is held that under the record in this case it does not prevail against the direct testimony of both the owner and the operator of the automobile and circumstances which negative the inclusion of the operator in the household and family of the owner.

Murray & Murray, Bismarck, for plaintiffs and appellants.

Hyland & Foster, Bismarck, and John A. Zuger, Bismarck, for defendants and respondents.

MORRIS Judge.

This is an action to recover damages to plaintiff's automobile resulting from a collision with another automobile driven by the defendant Ervin Schatz on the streets of the city of Bismarck about midnight of October 6, 1944. The defendant Gottlieb Schatz, who was not present at the time of the accident owned the car that was being driven by his son Ervin, then about twenty-eight years of age. A jury was waived and the case was tried to the court who found that the damage to plaintiff's car resulted from the negligence of the defendant, Ervin Schatz, and further found that the defendant, Gottlieb Schatz, was not liable for such damages. From a judgment rendered in accordance with these findings the plaintiff appeals and demands a trial anew in this court under the provisions of Section 28-2732, RCND 1943. In appeals under that section we determine the facts upon the record presented here but in doing so give appreciable weight to the findings of the trial court. Thede v. Rusch, 65 N.D 34, 256 N.W. 409; Sinerius v. Anderson, 73 N.D 269, 14 N.W.2d 230; Schott v. Enander, 73 N.D. 352, 15 N.W.2d 303; Kolb v. Kolb, N.D., 26 N.W.2d 484; Nichols v. Schutte, N.D., 26 N.W.2d 515; Agrest v. Agrest, N.D., 27 N.W.2d 697; Belt v. Belt, N.D., 32 N.W.2d 674.

The plaintiff contends that the defendant Gottlieb Schatz is liable for damages resulting from the negligent use of defendant's automobile by his son under the family purpose doctrine. Under that doctrine it may be generally stated that one who maintains 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 the family. 5 Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, § 3111; Berry on Automobiles, 7th Edition, Vol. 5, Sec. 5.04; Cyclopedia of Automobile Law, Huddy, 9th Edition, Vol. 7-8, page 324; Am.Juris., Vol. 5, Automobiles, Sec. 365; Vol. 60, C.J.S., Motor Vehicles, § 433. This doctrine is applicable in North Dakota. Vannett v. Cole, 41 N.D. 260, 170 N.W. 663; Ulman v. Lindeman, 44 N.D. 36, 176 N.W. 25, 10 A.L.R. 1440; Billingsley v McCormick Transfer Company, 58 N.D. 921, 228 N.W. 427; Miller v. Kraft, 57 N.D. 559, 223 N.W. 190; Carpenter v. Dunnell, 61 N.D. 263, 237 N.W. 779; Harmon v. Haas, 61 N.D. 772, 241 N.W. 70, 80 A.L.R. 1131; Posey v. Krogh, 65 N.D. 490, 259 N.W. 757.

The automobile in question was purchased by Gottlieb Schatz in 1941. At the time of the accident the members of his family living at home consisted of his wife, two daughters and four sons. The family resided on a farm near McClusky and about sixty miles northeast of Bismarck. Another son, the codefendant in this action, had left home in 1942. He resided at Bismarck and held various jobs in that vicinity. When he left home he had a car of his own which he later sold. He married while living in Bismarck, but was not married at the time of the accident. He then lived in a room in which he kept his personal belongings. There was a disagreement between Ervin and his father at the time he left home. Ill feeling continued between them for some time but gradually dissipated, and Ervin occasionally visited at home. About two weeks before the accident Gottlieb Schatz went to Bismarck and got Ervin to come home to help with the threshing. He left most of his clothing and his belongings in his room in town and intended to be on the farm for but a short period. During that time he did not use the car in question for his own personal pleasure or business, but did drive it several times upon the business of the father or the family.

On the evening of October 6 Ervin asked and was refused the permission of his father to take the car to go to a dance at Regan. After the father had gone to bed Ervin took the car, which had been left standing outside with the ignition key in it, and accompanied by a sister drove to the dance. Ervin left his sister at the dance and later drove to Bismarck where he became intoxicated and involved in the accident. He did not return to work or live on the farm.

The controlling question of fact presented by this record is whether defendant Ervin Schatz at the time of the accident was a member of the family of Gottlieb Schatz so as to render the father liable for the negligent operation of the car under the family purpose doctrine. When the head of a family provides an automobile for the use and pleasure of the members of the family and permits them to use it as will they become the agents of the head of the family for the purposes of such use which includes their own personal pleasure, and when they are so using the automobile the head of the family is liable to respond in damages for injuries resulting from their negligence under the...