Collinson v. Cutter

• Court: Iowa Supreme Court
• Writing for the Court: GAYNOR, J.
• Citation: Collinson v. Cutter, 186 Iowa 276, 170 N.W. 420 (Iowa 1919)
• Decision Date: 22 January 1919
• Docket Number: 32156
• Parties: WILLIAM HARVEY COLLINSON, Appellee, v. E. C. CUTTER et al., Appellants

170 N.W. 420

186 Iowa 276

WILLIAM HARVEY COLLINSON, Appellee, v. E. C. CUTTER et al., Appellants

No. 32156

Supreme Court of Iowa, Des Moines

January 22, 1919

REHEARING DENIED MAY 21, 1919.

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

ACTION to recover damages for personal injury. Opinion states the facts. Verdict and judgment for plaintiff in the court below. Defendants appeal.--Affirmed on condition.

Affirmed on condition.

Clark Byers & Hutchinson, for appellants.

Stipp Perry, Bannister & Starzinger, for appellee.

GAYNOR, J. LADD, C. J., PRESTON and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

This action is brought by the plaintiff, through his mother and next friend, to recover damages for personal injuries.

It is claimed that, while rightfully on a public street of the city of Des Moines, he was negligently and carelessly run over and injured by an automobile driven by the defendant Joseph Cutter. It is alleged that Joseph was acting as the servant, and under the direction and control, of the other defendants. On this relationship their liability is predicated.

The following facts are not in dispute: The accident occurred on the 1st day of April, 1916. The plaintiff was then but 5 years of age, and was in the act of crossing Forest Avenue (which runs east and west in the city of Des Moines), from the south side to the north side, at a point between Twenty-seventh and Twenty-eighth Streets. While so doing, he was run over, dragged, and injured by an automobile driven by the defendant Joseph. Joseph, at the time, was about 14 years of age, and was accompanied by his mother, Mrs. E. C. Cutter. The automobile was owned by his father, the defendant E. C. Cutter, and kept by him for family use. Joseph was a member of the family, and as such member, had permission to use the automobile on the public streets.

The cause was tried to a jury, and a verdict returned for the plaintiff against all the defendants, and they appeal.

There is no question in this record, we take it, as to the negligence of the defendant Joseph, and that his negligence was the proximate cause of the plaintiff's injuries, and that plaintiff cannot be charged with any negligence contributing to his injuries. We take it, further, that there can be no supportable contention, after the record is fairly considered, that the plaintiff is not entitled to a verdict against all the defendants in some amount. That Joseph was negligent, and that the injuries to this plaintiff were the proximate result of the negligence charged, is too plain to make it the subject of debate.

The liability of the father for Joseph's negligence is predicated on the thought that he was the owner of the automobile; that he had purchased it for the use and pleasure of his family, and kept it for that purpose; that Joseph was a member of his family and a minor, and had been given permission to use the automobile for the very purposes for which it was kept, and was so using it at the time of the accident, with the permission of his father, either express or implied. This thought runs through all the case, and has support in the evidence. The defendant father is, therefore, chargeable with the negligence of Joseph, under the rule laid down in Lemke v. Ady, 159 N.W. 1011 (not officially reported). In the Lemke case, the district court told the jury, touching the responsibility of the defendant for the acts of his son, that, if they found that the defendant kept the car for use as a family car, and permitted his son to take defendant's wife out in it, they would be warranted in finding that the sum was his father's agent, and was using it in his father's service. The instruction was approved by this court, and the court, in passing upon it, said:

"The testimony tended to show that the auto was kept for the pleasure and amusement of the family; that both the son and the father drove it; that the mother often directed its use; that it was kept, not only for the family use, but for the entertainment of guests. On the day of the accident, the son drove the machine, and his mother, with two visiting guests, were being taken on a pleasure trip from West Liberty to Iowa City. During this drive, the accident occurred. There was no error in the instruction."

In Dircks v. Tonne, 183 Iowa 403, 167 N.W. 103, the rule laid down in the Lemke case, supra, was approved. In this Dircks case, the evidence showed that the car was owned by the defendant; was driven by his son. The car so driven collided with the plaintiff's car. There was a judgment for the plaintiff for one dollar. The defendant appealed, claiming that he was in no way responsible for the negligence of his son. On this theory, at the conclusion of the evidence, he moved for a directed verdict. His contention was that his son, who was, at the time of the accident, operating the car, was not acting for him, or on his behalf, either as servant or agent, and therefore, if negligent, the negligence could not be charged to him. This motion was overruled. He claimed that it should have been sustained. In that case, the evidence tended to show that the defendant purchased the automobile for general use, and particularly for the use of himself and family in attending church; that the defendant had never operated the car; that his sons, who drove the car at the time of the accident, were the only members of the family who had done so. The sons took the car with the knowledge and consent of the defendant, and were using the car for the specific purposes for which it was purchased and kept by this defendant. The only feature that might seem to distinguish it from the case at bar is that the court found in that case that the specific purpose for which the car was being used was the specific purpose for which the defendant had purchased and authorized its use. The distinction is not available here. In the case at bar, the defendant purchased the car for the use of his family, to be used as a family conveyance, for any legitimate purpose to which the family might be disposed to put it. The evidence shows that it was being used for one of the purposes for which the automobile was purchased and kept by this defendant. The Dircks case, therefore, is authority for holding that, in the case at bar, the negligence of the son was rightly charged to the father.

As to the liability of Mrs. Cutter for the negligence of her boy, we have no doubt under this record. The car was a seven-passenger car. The driver was her son. Her husband was the owner of the car. It was kept for family use. While there is some slight effort to conceal the true relationship existing between the mother and the son on this particular trip, the whole record discloses, with sufficient clearness to justify us in saying so, that the purpose of this trip was a family purpose; a purpose in which the housewife of the family was particularly interested. On this day, a visit was made to a farm operated by Mrs. Cutter's brother. Frequent prior visits had been made to this farm, for the purpose of getting family supplies. On this particular day, the visit was made for that purpose, and apples and eggs obtained. The car was returning with these supplies at the time of the accident. Mrs. Cutter testified:

"This boy would frequently drive the car when I was along. When I saw him take it, I would go along with him. We often went out to my brother's farm, northeast of the city; sometimes as often as once a week, if the roads were good. Once in a while, when we were out of eggs, or something like that, we went out to the farm to get them. On the day the accident happened, I think we were bringing some apples and eggs home from the farm."

Bearing upon the exercise of control over the boy, she testified:

"The boy was under fifteen years of age. If I thought he was driving the car too fast, I would speak to him about it, and he would tell me that he was not going fast, but would slow up, if I insisted upon his doing so. I went along generally. He was in the habit of driving for members of the family, when the older boys were not around. I generally went where he went. I have asked him to drive me places. My children are expected to mind. He was living at home as a member of the family, and we were supporting him."

Defendant E. C. Cutter testified:

"I bought the car for family use; for the convenience and pleasure of the family. I don't think my wife ever went out alone with it. She most always took one of the children with her. She had a right to use the automobile whenever she desired."

Joseph Cutter testified:

"My uncle lived out there on the farm, and we used to go out to see him. We got some butter and eggs, and were on our way home from the farm when the accident happened. I usually drove this car for the family, and had permission to drive it whenever I desired. We left home at two o'clock, and we were returning, and as we were returning, about six o'clock, the accident happened. I don't remember whether I asked anybody for the car that day. My father was not at home. When he was at home, as a rule, I asked him for the car when I wanted to take it."

It appears, therefore, that this was a family car, kept for family use, and that this boy had permission to drive it. The jury could well find that the mother had control over its use, in the absence of her husband,--at least, control so far as the children were concerned; and that it was being driven at this time by her minor son, with her permission, and for purposes of her own. As bearing on this, see Daggy v Miller, 180 Iowa 1146, 162 N.W. 854. There is no basis in this record for the suggestion that the mother, Mrs. E. C. Cutter, was riding in this automobile simply as the guest of her son, and,...