Creaghead v. Hafele's Administrator

• Decision Date: 28 November 1930
• Citation: Creaghead v. Hafele's Administrator, 236 Ky. 250, 32 S.W. 2d 997 (Ky. 1930)
• Parties: Creaghead v. Hafele's Administrator.
• Court: Supreme Court of Kentucky

Page 250

236 Ky. 250

Creaghead v. Hafele's Administrator.

Court of Appeals of Kentucky. Common Law and Equity Division.

Decided November 28, 1930.

Automobiles. — Owner held not liable under family purpose doctrine where automobile, which struck child, was operated by adult self-supporting daughter for own purposes.

Evidence showed that daughter of owner of automobile involved lived in another state, and was spending her vacation with parents, and that she drove automobile without objection from owner.

Appeal from Kenton Circuit Court

BEN BIEDENHARN, JR., for appellant.

BENTON, YUNGBLUT, SCOTT & BENTON and SAWYER A. SMITH for appellee.

OPINION OF THE COURT BY JUDGE REES

Reversing.

On August 7, 1928, Le Roy Hafele, a child two and a half years of age, was struck by an automobile driven by Elizabeth Creaghead, and he sustained injuries which resulted in his death.

The automobile was owned by Thomas J. Creaghead, the father of Elizabeth Creaghead. This suit for damages was filed by Le Roy Hafele's administrator against the appellant on the theory that he, as owner of the car, was liable under the "family purpose" doctrine. This allegation is taken from the petition: "The defendant, Thomas J. Creaghead, is the father of the said Elizabeth Creaghead, and is a resident of Kenton county, Kentucky. The car conducted and driven as aforesaid belonged to and was the property of defendant, kept and permitted by him to be used for the convenience and pleasure of his family, and was at the time and place above mentioned operated by said Elizabeth Creaghead with the consent and permission of defendant, as a member of his family, and as his agent." On this appeal from a judgment for $3,000 recovered against him, appellant's sole contention is that the trial court erred in refusing to sustain his motion for a directed verdict.

The motion for a directed verdict was based on the grounds that the driver of the car was an adult and not a member of the father's family within the meaning of the "family purpose" doctrine, and that no agency was established. The facts bearing on this point, fairly established by the evidence, are that the driver of the car, Elizabeth Creaghead, who was more than thirty years of age, resided in Philadelphia, Pa., and was employed as an instructor in the University of Pennsylvania at a salary of $165 a month. She had been so employed since October, 1925, and after she left home in 1925 her father never contributed to her support. The appellant, Thomas J. Creaghead, and his wife resided in the town of Ft. Mitchell, Ky. It was the daughter's custom to spend about a month of her vacation at her parents' home in Ft. Mitchell each summer. About June 1, 1928, the appellant bought an automobile for his own use and use of his family. Some time later in the month his daughter came to his home to spend her vacation, and, because of the illness of her mother, she remained until the third week in August. During the time she was at appellant's home she drove his automobile without objection from him, and there is no claim that she was not permitted to use it when it was not being used by appellant. Several days prior to August 7, 1928, appellant went to New York to attend a convention and returned to his home the day after the accident in which appellee's intestate was killed. He left no instructions in regard to the use of the car, and during his absence his daughter used it as she desired.

On the morning of August 7, she drove to Cincinnati in the car for the purpose of purchasing some articles for her home in Philadelphia. Before returning to appellant's home she drove to the home of her sister-in-law, Mrs. Robert Creaghead, who resided in Ft. Thomas, Ky. While she was there, her sister-in-law, whose husband was away from...