Daily v. Schneider

• Citation: 234 P. 951,118 Kan. 295
• Decision Date: 11 April 1925
• Docket Number: 25,833
• Parties: PATRICK DAILY, Appellee, v. P. P. SCHNEIDER, Appellant
• Court: United States State Supreme Court of Kansas

234 P. 951

118 Kan. 295

PATRICK DAILY, Appellee, v. P. P. SCHNEIDER, Appellant

No. 25,833

Supreme Court of Kansas

April 11, 1925

Decided January, 1925.

Appeal from Marion district court; CASSIUS M. CLARK, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE--Negligent Use by Minor Son--Family-purpose Doctrine. The family purpose doctrine, under which an owner of an automobile purchased for the use and pleasure of his family is held to be liable for injuries inflicted while it is being used by members of his family for their own business or pleasure, on the theory that the automobile is being used for the purpose or business for which it was kept, and that the member of the family operating it at the time of the injury is therefore acting as the owner's agent or servant, does not obtain in this state.

2. SAME--Liability of Parent for Negligent Driving of Minor Son. A parent is not liable for the negligence of his minor child in driving the parent's automobile without his consent and in violation of an express command, merely because the car was accessible to the child and the owner had knowledge that the son had previously taken out the car in disregard of his orders.

3. SAME--To make him liable for the negligent acts of the child in driving the automobile it must be shown that it was used with the express or implied consent of the parent and in furtherance of his business.

4. SAME--Instructions. The giving of an instruction inconsistent with the rules stated is held to be error.

W. H Carpenter, and W. R. Carpenter, both of Marion, for the appellant.

Joe E. Lynch, of Herington, and Braden C. Johnston, of Marion, for the appellee.

OPINION

JOHNSTON, C. J.:

This is an action by Patrick Daily against P. P. Schneider, to recover damages sustained when he was struck and injured by the automobile of defendant, driven by his son. Plaintiff obtained a judgment from which defendant appeals.

It appears that defendant had taken his wife to a hospital in Herington, about twenty miles away. John Schneider, an adult married son, lived in Herington, and Jonathan, who was thirteen years old, as well as the defendant, stayed temporarily at the home of John while they were in Herington. The automobile of defendant was kept in John's garage when not in use. The defendant remained in Herington only about a week after his wife was taken to the hospital, and then returned to his home, and while he was in Herington he was driven to the hospital by Jonathan once or twice a day. Jonathan usually drove the car, as the defendant could not drive it. Other members of the family were driven to the hospital to visit the mother. On the day of the accident Jonathan went alone to the hospital to take some food to his mother, which had been prepared by Mrs. John Schneider, and when he arrived there his mother requested him to go to the house of a friend to get some rye bread which she wished to have, and it was on this trip that the automobile was driven against the plaintiff. He was an employee of the railway company and was acting as flagman at the point where the railway crosses Walnut street. Just prior to the accident there had been switching on the railway over the street, and a passenger train was due to pass. According to plaintiff's testimony, he was standing about eight feet from the curb of the pavement with flag in hand when two automobiles approached, one driven by Mrs. Tripp and the other by Jonathan. Mrs. Tripp's car was ahead and Jonathan's was following her. Just as they approached the crossing near which plaintiff was standing, Jonathan undertook to pass the Tripp automobile, and instead of turning to the left he turned suddenly to the right, driving at a rapid rate, when he collided with the plaintiff.

There was a demurrer to plaintiff's evidence, the overruling of which is assigned as error. Under the evidence there can be little question but that there was culpable negligence of the driver of the automobile and of liability of the defendant if he is responsible for the negligence of his son. It was at least a question of fact for the determination of the jury, and whether or not there was contributory negligence was likewise a jury question under the evidence.

The principal error assigned arises on the instruction given to the jury, it being claimed that the case was submitted on the family-purpose doctrine, regardless of the fact that the automobile was used without the owner's consent or knowledge and not in furtherance of his business. The pertinent part of the instruction follows:

"You are instructed that before the plaintiff may recover at your hands you must find from a preponderance of the evidence that the injuries complained of were the proximate result of the carelessness and negligence of the defendant's son and that the carelessness and negligence of the plaintiff did not contribute to such injuries. In the event that you determine that such injuries were the result of the carelessness and negligence of the defendant's son and without contributory negligence on the part of the plaintiff, you should next inquire as to whether or not such carelessness and negligence on the part of the defendant's son are chargeable to the defendant. In this connection you are instructed that if at the time of the injury complained of the car of the defendant was being driven by his son in taking food to his mother at the hospital in Herington, and that the defendant had left said car at Herington and accessible to his son, knowing that his son was in the habit of driving said car, and under such circumstances that he might reasonably anticipate that his son would use said car for such purposes, then and in that event any negligence on the part of his son in so using said car for the purpose of taking food to his mother would be attributable to the defendant, and he would be liable therefor to the same extent as if he personally had been the negligent party. In this connection, and as bearing upon the question as to whether or not the defendant might reasonably have anticipated such use of said car, you have a right to take into consideration any disposition that the defendant may have made of said car and any instructions that he may have given his son in regard thereto. And if you find that such carelessness and negligence of the defendant's son was not under such circumstances as to be chargeable to the defendant, then the plaintiff cannot recover and your verdict should be...