C. N. Jones v. James D. Cook.

• Citation: 90 W.Va. 710
• Parties: C. N. Jones v. James D. Cook.
• Decision Date: 11 April 1922
• Court: Supreme Court of West Virginia

90 W.Va. 710

C. N. Jones

v.James D. Cook.

Supreme Court of Appeals of West Virginia.

Submitted March 8, 1922.

Decided April 11, 1922.

1. Master and Servant Automobile Driver's Agency for Owner Presumed.

In an action for recovery of damages resulting from a collision with an automobile, proof that defendant was the owner of the automobile that caused the injury and that the injury was the result of the negligence of the driver thereof creates a presumption that the driver when the collision occurred was in the service of the owner and operating it on his account. (p. 711).

2. Same Automobile Owner's Liability for Step-Daughter's Negligence Depends on Agency.

When property has been injured by the negligent operation of an automobile driven by the owner's step-daughter, the owner's liability depends upon whether the step-daughter was his servant and engaged upon his business at the time. (p. 713).

3. Municipal Corporations Automobile Not a Dangerous Agency.

An automobile is not a "dangerous agency" so as to make its owner liable for injuries to travelers inflicted while being driven by another person, irrespective of the relationship of master and servant. (p. 714).

4. Master and Servant Automobile Owner Held Liable for Step-daughter's Negligence.

Where a person allows his step-daughter, who is a member of his family, to drive an automobile which he maintains for the comfort, convenience, pleasure, entertainment and recreation of his family, whereby the step-daughter negligently injures the property of a third party, the owner is liable; the step-daughter while so driving is acting in the furtherance of the owner's purpose. (p. 714).

(poffenbarger, president, dissenting.)

Error to Circuit Court, Wood County. Action by C. N. Jones against James D. Cook. Directed verdict for the defendant and the plaintiff brings error.

Reversed and remanded.

T. A. Brown and C. N. Matheny, for plaintiff in error. R. E. Bills and C. M. Hanna, for defendant in error.

Meredith, Judge:

On October 24, 1919, Ivol Hickman, a step-daughter of defendant, and who was then a member of his family and under twenty-one years of age, was driving defendant's automobile in returning from a foot-ball game in Parkersburg. She was the only member of defendant's family in the automobile, but had with her a number of her young friends. At the intersection of Covert and Sixteenth Streets she permitted defendant's automobile to run into and practically demolish plaintiff's automobile. Plaintiff seeks recovery of damages. As the record now stands, plaintiff clearly showed that she was negligent and that plaintiff was not. Plaintiff made a clear case against her, but she is not made a defendant. It was also proved that the car she drove belonged to defendant. Defendant introduced no evidence, but at the conclusion of plaintiff's evidence, defendant moved the court to exclude it and to direct a verdict for defendant, and this was done.

Plaintiff's injury, the driver's negligence and defendant's ownership of the automobile were proved. This made a prima facie case.

"When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was

not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person." Shearman & Redfield, Law of Negligence, (6th ed.) Section 158.

In the case of Norris v. Kohle, 41 N. Y. 42, it was held that in an action for causing dearth in the streets of a city, charged to have been due to the negligence of the defendant's servants, evidence that the fatal injury was occasioned by a run-a-way span of horses and wagon, owned by the defendant, was sufficient to authorize a jury to find persons in charge of such horses and wagon to be his servants. In discussing this phase of the evidence, the court says:

"The property being proved to belong to the defendant, it is urged that a presumption arises that it was in use for his benefit, and on his own account. This argument, I think, is a sound one. The ownership of personal property draws to it the possession. The owner is entitled to have and to keep possession, and no person can justly obtain possession until some act of authority from the owner is proved. Ownership implies possession, and possession is in subordination of title. No proof was given in the present case, separating the ownership from the possession and the presumption of law is, that the wagon and horses of the defendant were in use in his service, and on his account."

In Schaefer v. Osterorink, 67 Wis. 495, 30 N. W. 922, 58 Am. Rep. 875, it was held that:

"In an action against a father and a son jointly to recover for the negligence of the son, a minor, where it is charged that, at the time the plaintiff was injured, the son was acting as the servant of the father it is not error to charge that 'the presumption is that a minor child living with his father, and using his team and conveyance in and about the business of such father, is acting in his behalf and upon his direction, until the contrary is made to appear by the evidence; this fact established, the burden to show that his son was not his servant is imposed upon the father, ' where the court, in other parts of its charge, has submitted to the jury the question whether or not, at the time the negligence was committed, the son was in fact the servant of his father."

See also, Svenson v. Steamship Company, 57 N. Y. 108; McCoun v. Railroad Co., 66 Barb. (N. Y.) 338; Lovingston v. Baucheus, 34 I11. App. 544; 6 Thompson, Commentaries on Negligence, Sec. 7659; 1 Cooley, Torts, (3rd. ed.) page 181.

Whether the driver of defendant's automobile at the time of the accident was in his employment was peculiarly within his knowledge, and her negligence in its use and his ownership of it being shown, the jury could very properly have found that the driver was his servant; the facts shown created a presumption that she was in his service and acting on his account, and the case should have been submitted to the jury.

But there arises a more serious question on the record. It can fairly be inferred from the evidence that defendant's automobile was a "big closed" Hudson "family car;" that it was acquired by him for the use and pleasure of his family, including his step-daughter; that she was accustomed to drive it with his knowledge and consent, not only generally, but also with his permission on this particular occasion, and that on this drive she was using it for her own pleasure and that of her friends, one of the very purposes for which it was acquired and kept. Therefore, the question for decision is whether the defendant is liable for an accident occurring by reason of the proved negligence of his step-daughter while driving his automobile acquired for the purposes mentioned, by his permission, and for her pleasure.

(1) To this question courts of high order make directly opposite answers. All agree, however, that defendant's liability depends upon whether the driver of the automobile was his servant and engaged upon defendant's business at the time the negligent act occurred. Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970; Hartley v. Miller, 165 Mich. 115, 130 N. W. 336; McNeal v. McKain, 33 Okla. 449, 126 P. 742, 41 L. R. A. (N. S.) 775; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R, A. (N. S.) 59; Griffin v..Russell, 144 Ga. 275, 87 S. E. 10, L. R, A. 1916F 216, Ann. Cas. 1917D 994; Van Blaricom v. Hodgson, 220 N. Y. lll, 115 N. E. 443, L. R. A. 1917F 363; Doran v. Thomsen, 76 N. J. L. 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 A. S. R. 677; Missell v. Hayes, 86 N. J. L. 348, 91 Atl. 322; King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F 293; Arkin v. Page, 287 111. 420, 123 N. E. 30, 5 A. L. R. 216.

(2) The defendant could not be held liable for the negli- gent wrong of his step-daughter merely because of the family relation between them. Blair v. Broadwater, 121 Va. 301, 93 S. E. 632; Cohen v. Meador, 119 Va. 429, 89 S. E. 876; Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; Mirick v. Suchy, 74 Kan. 715, 87 P. 1141, 11 Ann. Cas. 366.

(3) An automobile is not per se such a dangerous agency that its owner is liable for injuries on a highway inflicted while being driven by another, irrespective of the relationship of master and servant, or of principal and agent. On this proposition we believe there is little disagreement, though we have no doubt that the dangerous character of the automobile has had a very important bearing on the decisions.

(4) It necessarily follows that unless the driver of defendant's car at the time of the injury was in his service the defendant is not liable. The authorities can not be reconciled. In the leading case of Doran v. Thomsen, supra, a case very similar to the case at bar, the court held that the owner was not liable. In that case the daughter, who was the driver, was the only member of defendant's family in the automobile. In the later case of Missell v. Hayes, supra, a son of the defendant was driving the automobile, and with him at the time of the accident were the defendant's wife and daughter, and two guests. The court differentiates that case from the case of Doran v. Thomsen in that in the Mis- sell case there were members of defendant's family in the automobile other than the driver, and held that it was a question for the jury to determine whether the son while driving the automobile was the father's servant on the father's business, saying: "It was within the scope of the father's business to furnish his wife and...