Cook v. Mann, 1265-5665.

• Citation: 40 S.W.2d 72
• Decision Date: 10 June 1931
• Docket Number: No. 1265-5665.,1265-5665.
• Parties: COOK v. MANN et ux.
• Court: Supreme Court of Texas

40 S.W.2d 72

COOK v. MANN et ux.

No. 1265-5665.

Commission of Appeals of Texas, Section B.

June 10, 1931.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by C. M. Mann and wife against M. M. Cook. Judgment for defendant was reversed by the Court of Civil Appeals [23 S.W.(2d) 860], and defendant brings error.

Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

P. B. Cox and E. L. Fulton, both of Wichita Falls, for plaintiff in error.

Walsh & Smith, of Wichita Falls, for defendants in error.

SHORT, P. J.

This suit was instituted by the defendants in error, who are husband and wife, for damages alleged to have been occasioned by the negligent act of the 17 year old son of the plaintiff in error, in driving a Ford automobile, belonging to the employers of the father of the son, on a public street of the city of Wichita Falls, rapidly and recklessly, and in striking the car of the defendants in error, wrecking it, and throwing the wife to the pavement, seriously injuring her. The case was tried to the court alone, and judgment was rendered in favor of the plaintiff in error. The judge filed his findings of facts and conclusions of law, but no statement of facts was filed. Upon an appeal to the Court of Civil Appeals at Fort Worth, that court reversed the judgment of the district court, and rendered a judgment in favor of the defendants in error for the sum of $2,500, the amount of damages the district judge found the defendants in error had sustained. 23 S.W.(2d) 860.

The opinion of the Court of Civil Appeals details the material allegations in the petition, and copies in hæc verba the findings of fact and conclusions of law by the trial court, to which we refer for a complete understanding of the issues presented and the facts established. This opinion by the Court of Civil Appeals, as we construe it, bases the conclusion reached upon three somewhat related principles of the law. One is the family purpose doctrine, another is the law of principal and agent, and the other is that applicable to the civil liability of the parent for the tortious act of a minor child. Thus construing the opinion of the Court of Civil Appeals, we will discuss these three principles in the light of the pleadings, and of the facts found by the trial judge.

Corpus Juris defines family purpose doctrine as follows: "That where a head of the family maintains a motor vehicle for the general use, pleasure and convenience of the family, the use of the vehicle for the pleasure and convenience of the family is in furtherance of his purpose in providing it, and he is in many jurisdictions held liable for the negligence of a member of the family having general authority to drive it, while the vehicle is being so used." 42 C. J. p. 1080, § 838. The same authority, under § 839, further states: "that this rule will be applied only to vehicles maintained for the general use, pleasure and convenience of the owner's family."

Among other allegations of the petition is one to the effect that the plaintiff in error, at the time of the collision, and for some time prior thereto, had been an actual employee of the Hamilton, Martin Investment Company, and that the car being driven at the time, by the son, had been furnished to the plaintiff in error to be used by him in the regular discharge of his duties as such employee, and that the plaintiff in error had been permitted by said company to keep said car in his possession and that he had full control of the car, and used it, not only for his work, but also as a family car, and the members of his family, including this son, were permitted to use said car as a family car, and that on the occasion in question the car was being used by the son as a family car, with the knowledge and consent of the plaintiff in error.

The findings of fact, as specially applicable to these allegations, are to the effect, that the plaintiff in error was not guilty of any negligence; that the car, driven by the son at the time of the accident, was owned by the Hamilton, Martin Investment Company and had been turned over to the plaintiff in error by this company to use in the work of the company and for no other purpose; that the plaintiff in error had kept said car at his home, when not used, for two or three months prior to the accident, and on three or four occasions the plaintiff in error had sent this son on errands in said car to get ice and laundry.

The trial court having rendered a judgment in favor of the plaintiff in error, it is the duty of the appellate court to construe these findings of fact in their most favorable light, so that the facts found will be in harmony with each other and with the judgment rendered. The fact that the plaintiff in error was not guilty of any negligence is tantamount to a finding that these damages, inflicted by his son, were not the result of any act or declaration on his part, inconsistent with his duty as the head of the family to control his children and his property, or property in his charge, as a man of ordinary prudence under the same or similar circumstances would have done. The fact that the car belonged to his employers, to be used in pursuit of their business only, in connection with the fact that the plaintiff in error was not guilty of any negligence, when favorably construed so as to support the judgment, negatives the idea that the car was used as a family car, and that under these facts the family purpose doctrine would not be applicable to the facts in this case.

The trial judge found that the only time this son had ever used this car, previous to the occasion in question, was when he had been expressly sent upon an errand by his father, and that in accomplishing the purposes of these errands, only four in number at the utmost, the son had so used the car that no damage was done to any one. The court also found that upon the occasion in question the father was ignorant...