Clawson v. Schroeder

• Decision Date: 10 June 1922
• Docket Number: 4749.
• Citation: 208 P. 924,63 Mont. 488
• Parties: CLAWSON v. SCHROEDER (TWO CASES).
• Court: Montana Supreme Court

208 P. 924

63 Mont. 488

CLAWSON v. SCHROEDER (TWO CASES).

No. 4749.

Supreme Court of Montana

June 10, 1922

Appeals from District Court, Yellowstone County; A. C. Spencer Judge.

Separate actions by John R. Clawson, individually and as administrator of the estate of Harold Clawson, deceased, against John H Schroeder. From a judgment in one case in favor of plaintiff for less than plaintiff asked, and an order denying plaintiff's motion for a new trial, plaintiff appeals and from a judgment for plaintiff and an order denying defendant's motion for a new trial in the other case defendant appeals. Judgment and order in first case affirmed, and judgment and order in second case reversed, and cause remanded, with directions.

GALEN J.

These two causes were consolidated and tried together in the district court of Yellowstone county and are presented to this court upon a single record. On appeal they were argued and briefed together, and will be jointly considered and determined.

In the first cause John R. Clawson as the administrator of the estate of Harold Clawson, deceased, seeks the recovery of $50,000 damages from the defendant from the alleged negligent killing of Harold Clawson, plaintiff's son; and in the second cause the plaintiff seeks recovery in his own right of $20,000 damages for loss of decedent's earnings between the date of his death and the time that he would have reached his majority.

It appears that the deceased was 10 years of age, and that while crossing Second Avenue North in the city of Billings on December 10, 1918, he was struck by an automobile belonging to the defendant, then being driven by defendant's son, Herman, 18 years of age, as a result of which the decedent was severely injured and died. It is alleged that the automobile was owned and maintained by the defendant "for the use, convenience, pleasure, and comfort of himself and family"; that Herman Schroeder, the minor son of the defendant, and a member of his family, "was authorized and had authority from the defendant to operate and run said automobile, and was so employed by the defendant for that purpose"; that at the time of the accident it was being driven at an excessive rate of speed, in violation of the ordinances of the city. Upon issue joined, both cases were tried together to a jury. In the first judgment was rendered and made in favor of the plaintiff as administrator for $1,000 and costs upon a verdict in plaintiff's favor of $1,000; and in the second judgment was rendered and made in plaintiff's favor for $5,000 and costs, upon a verdict for the plaintiff in the sum of $5,000. In the first cause plaintiff has appealed from the judgment and order denying his motion for a new trial; and in the second the defendant appeals from the judgment and order denying him a new trial.

Although many errors are assigned, there is, in our opinion, but one question necessary to be considered, decisive of both appeals, viz. the liability of the owner for the tort of his son, while driving an automobile on an independent mission; it having been purchased and used for family purposes.

The evidence discloses that the defendant owned and operated the automobile in question in connection with his business and for the pleasure of himself and his family; that the defendant, being away from home much of the time, instructed his two sons not to use the car in his absence without obtaining their mother's permission. On the night of the accident Mrs. Schroeder directed her son Herman to take two lady guests to their respective homes from the Schroeder residence; and Herman, in obedience, first drove one of them to her residence, immediately returning for the other lady, whom he then took to her home. Thereupon he started down town to the Y. M. C. A. building, for purposes of his own, doing so in disobedience of his mother; and, while hurrying so as to avoid being late for supper, the unfortunate accident occurred.

Herman Schroeder testified:

"My mother told me to take the ladies home, but not to go down town. * * * I drove this car down town that night on my own errand. I was not driving it for my mother. I was going to the Y. M. C. A."

In the case of Lewis v. Steele, 52 Mont. 300, 157 P. 575, the father was held liable, following earlier decisions enunciated by the courts, particularly the doctrine laid down by the Supreme Court of Washington in the case of Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59. In the Lewis Case the material distinguishing feature from the case before us is: There the father gave his express permission and consent to his son to drive the car on the occasion of the accident. Although the father was held liable, Mr. Justice Sanner, speaking for this court, well said:

"Whether the circumstances make a case for the application of respondeat superior depends upon considerations entirely beside the fact that the device employed was an automobile. That instrument is now too well established to be singled out for judicial preference or animadversion. It has taken its place among the common methods of transportation, and no good reason occurs to us, in the absence of legislation, for denying to its use the same general rules of responsibility, direct and consequential, as are applicable to other common methods of transportation, having in mind, of course, its potentialities for harm as well as good."

In the recent case of Hoffman v. Roehl, 61 Mont. 290, 203 P. 349, the employer was held liable merely in application of the well-known rules of agency. In that case we correctly stated the rule as follows:

"The decisive question in every instance is whether the agent or employee was, at the time of negligent injury, acting within the scope of his employment. If he acted independently of his employer, or was on missions or purposes of his own, then the employer is not held accountable in damages."

This we conceive to be the basic principle, even though the driver of the automobile is the son or other member of the family of the owner of the automobile.

"The essence of the doctrine of respondeat superior is that of agency. The relation of parent and child, or husband and wife, or other family connection, unaccompanied by the contractual relation of employer and employee, is not sufficient to create responsibility on the part of the one for the act or omission of the other." See section 901, Babbitt on the Law Applied to Motor Vehicles (2d Ed., by Blackmore); also Shearman & Redfield on Negligence (5th Ed.) § 114; Thompson, Commentaries on Negligence (2d Ed.) §§ 537, 538.

Liability cannot be cast upon the defendant merely because he owns the car or because he permitted his son to drive the car whenever he wished to do so, or because the driver was his son. Liability arises from the relation of agency, and it must be determined by the inquiry whether the driving at the time was within the authority of the principal, in the execution of his orders or in the doing of his work. Agency is not presumed merely by the fact that the driver of the automobile happens to be a member of the family of the owner thereof. Maher v. Benedict, 123 A.D. 579, 108 N.Y.S. 228.

In the absence of proof of agency, the plaintiff is not entitled to a recovery, even though it may appear that the son was driving the automobile at the time of the accident with the express or implied consent of his father. The defendant's son did not drive the automobile at the time of the accident with either the knowledge, consent, approval, or direction of the defendant or in his place or stead, so that the defendant cannot be held responsible upon any theory.

It is a rule well established that the father cannot be held responsible for the tort of his son, committed without his knowledge or authority, express or implied. The only ground upon which the father can be held answerable for the act of his son in the case under consideration excludes the idea of an independent venture on the part of the son. Stowe v. Morris, 147 Ky. 388, 144 S.W. 52, 39 L. R. A. (N. S.) 224. The basic principle of liability is agency, and the father cannot be here held responsible for the negligence of his minor son in the absence of proof of the existence of agency at the time of the accident. See Babbitt on the Law Applied to Motor Vehicles, by Blackmore, § 901.

In discussing the liability of the father under the family purpose doctrine, the Supreme Court of New York in the case of Van Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443, L. R. A. 1917F, 363, said:

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