Cannon v. Bastian

• Decision Date: 19 January 1922
• Citation: 31 Del. 533,116 A. 209
• Court: Delaware Superior Court
• Parties: WILMER J. CANNON, d. b. a., v. JOSEPH W. BASTIAN, p. b. r

116 A. 209

31 Del. 533

WILMER J. CANNON, d. b. a., v. JOSEPH W. BASTIAN, p. b. r

Superior Court of Delaware, New Castle County

January 19, 1922

Superior Court for New Castle County, January Term, 1922.

Appeal from Court of Common Pleas, No. 139, January Term, 1921.

Action by Wilmer J. Cannon, defendant below, appellant, against Joseph W. Bastian, plaintiff below, respondent. From a judgment for plaintiff in the Court of Common Pleas. Directed verdict for plaintiff below, respondent.

Directed verdict for the defendant.

Henry R. Isaacs and LaPenne Guenveur for defendant below appellant.

Philip L. Garrett and George W. Lilly for plaintiff below respondent.

PENNEWILL C. J., sitting.

OPINION

PENNEWILL, C. J.

At the close of the plaintiff's testimony a motion was made by the defendant that a nonsuit be entered because:

"The facts as proved by the plaintiff are merely that the defendant was the owner of the car that figured in the accident, and that at the time of the accident, it was being operated by his son."

While such facts were shown, it was also shown that said car was bought by the defendant as a passenger car to be used by him and his family, that the car at the time of the accident was driven by his minor son, and that his son had used the car with his knowledge and consent, at other times.

The motion for a nonsuit was refused, with a suggestion from the court that the same question might be raised by a prayer for binding instructions.

It is this prayer that is now before the court, and it is important that all the undisputed pertinent testimony be stated and considered.

In addition to the facts above set forth, it was shown that the minor son of the defendant, who was driving the car at the time of the accident, was over 20 years of age, had several years' experience in the operation of motor cars, and knew how to repair them. He, was therefore, presumably a capable driver. It was also shown that, at the time of the accident, said minor was not living with his father in Seaford, but was employed by the American Manganese Steel Company in the city of New Castle. The testimony further shows that shortly before the accident the son, being at his father's home, was told by his father to take the car with him when he returned to New Castle, for the purpose of being repaired. This the son did, but on the day of the accident, having occasion to go from New Castle to Wilmington on business for his employer, he drove his father's car, and in returning to New Castle, with two other young men, his car collided with the car of the plaintiff on the public road near Farnhurst.

It is undisputed that the car was sent to New Castle for repairs and for no other purpose, and the father testified that he did not know his son was going to drive the car to Wilmington, consent thereto, or have any knowledge that it was to be so used.

The plaintiff contends that the defendant is liable for any negligence of his son in the operation of the car that caused the accident in question. This contention is based on what is known as the family service, or purpose, doctrine, which according to some authorities means, that the owner of an automobile, purchased and maintained for the use and pleasure of himself and family, is liable in damages to a third person for injuries sustained through the negligent operation of the automobile by a member of the family.

There is an irreconcilable conflict in the decisions of courts of last resort, not so much, I think, with respect to the doctrine as to its application to the facts proved.

The real question seems to be, what is meant by the term "use or pleasure of the family"? And particularly what is meant by "family"? Some courts have held that it extends to the use of the car by any member of the family for his own personal pleasure, and others restrict its use to the pleasure of the family as such.

In the case of Pratt v. Cloutier, 119 Me. 203, 110 A. 353, 10 A. L. R. 1434, the court, after examining the cases in which the family purpose doctrine has been generally upheld, said:

"The distinction between such cases and the instant case is found in the fact that in the former other members of the family were in the car at the time of the accident, and the jury might well find the driver in such circumstances was engaged in his father's business. Few indeed, of the many cases cited will be found to go so far as to hold a father liable when a son alone in the father's car, seeking only his own pleasure, * * * and while so engaged injures a third party."

But many cases hold a father liable even under such circumstances, and this the learned court admits by saying in conclusion:

"Examination of the cases discloses a divergence * * * not soon to be reconciled. * * * In any event we cannot adopt the rule for which the plaintiff contends. In such cases we are bound to follow what we believe to be the sounder rule based upon the settled law of master and servant and principal and agent."

To the same effect are the following cases: Arkin v. Page, 287 Ill. 420, 123 N.E. 30, 5 A. L. R. 225; Daily v. Maxwell (1911) 152 Mo.App. 415, 133 S.W. 351; Stowe v. Morris (1912) 147 Ky. 386, 144 S.W. 52, 39 L. R. A. (N.S.) 224; Allen v. Bland (Tex. Civ. App. 1914) 168 S.W. 35; Griffin v. Russell (1915) 144 Ga. 275, 87 S.E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994; Davis v. Littlefield (1914) 97 S.C. 171, 81 S.E. 487; Ploetz v. Holt (1913) 124 Minn. 169, 144 N.W. 745; Smith v. Jordan, 211 Mass. 269, 97 N.E. 761; Jensen v. Fischer (1916) 134 Minn. 366, 159 N.W. 827; Missell v. Hayes, 86 N.J.L. 348, 91 A. 322.

The following cases are some of those that uphold the contrary view: Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L. R A. 1918C, 715 Ann. Cas. 1918E, 1127; Doran v. Thomsen, 76 N.J.L. 754, 71 A. 296, 19 L. R. A. (N.S.) 335, 131 Am. St. Rep. 677; Watkins v. Clark, 103 Kan. 629, 176 P. 131; Smith v. Jordan, 211 Mass. 269, 97 N.E. 761; Blair v. Broadwater, 121 Va. 301, 93 S.E. 632, L. R. A. 1918A,...