Denison v. McNorton

• Decision Date: 10 January 1916
• Docket Number: 2675.
• Citation: 228 F. 401
• Parties: DENISON v. McNORTON.
• Court: U.S. Court of Appeals — Sixth Circuit

228 F. 401

DENISON v. McNORTON.

No. 2675.

United States Court of Appeals, Sixth Circuit.

January 10, 1916

[Copyrighted Material Omitted]

Tolles Hogsett, Ginn & Morley and Westenhaver, Boyd & Brooks, all of Cleveland, Ohio, for plaintiff in error.

Howell Roberts & Duncan, of Cleveland, Ohio, for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and CLARKE, District judge.

KNAPPEN Circuit Judge.

The defendant in error (who was plaintiff below), while crossing the roadway adjoining the public square in the city of Cleveland, was struck by defendant's automobile, driven by his son William, sustaining severe injuries, on account of which this suit was brought. At the close of the testimony defendant asked direction of verdict in his favor, which was denied, and the case submitted to the jury, which gave verdict for plaintiff, on which judgment was entered. The grounds relied upon for reversal are: (1) That defendant is not liable for the alleged negligence of the son in operating the automobile, for lack of relation of master and servant; (2) that plaintiff is conclusively shown guilty of contributory negligence; and (3) error in the charge to the jury.

1. Defendant was actively connected with a manufacturing corporation; his home was about seven miles from his business; his immediate family consisted of defendant, his wife, four sons, and one daughter, all living at home; two of the sons as well as the daughter were adults, one of the adult sons being engaged in the business with which the father was connected; the third son (William) was about 20 years old, and was employed in the same business; the fourth was 16 or 17 years old, and still in school. The defendant owned the car, which was used, not only for taking him and his sons back and forth between home and business (as well as for some business purposes), but also for purposes of pleasure and recreation for the family, not only on weekdays, but on Sundays. As one of the sons expressed it:

'The car was more or less in constant use when in proper condition.'

No chauffeur was kept, and this car was the only one defendant or any member of his family had. The father drove comparatively seldom; usually one of the sons drove, and it is fairly inferable that William was usually the one to drive when in the car, by reason of his greater experience as driver. The mother and daughter never drove, but were frequently taken out in the car; the driving being done by one of the sons, and inferably more often by William. We state the case, as we must, most favorably to plaintiff. On the day of the accident, which was Sunday, the father and mother were away from the city on a few days' absence; the four sons and the daughter remaining at home. An automobile trip to a resort some 60 miles distant being planned, the daughter put up and took a lunch for the refreshment of the party; the car carrying the four sons and the daughter, as well as another man, a friend of the family, who, as the daughter testified, was 'visiting us.' The maid was the only member of the household left at home.

The general principles involved are familiar: The father is not liable for the son's alleged negligence merely because of such relationship; his liability, if any, must rest upon the relationship of principal and agent, or that of master and servant. Defendant's mere ownership of the machine is not enough to create liability for his son's negligence (Lotz v. Hanlon, 217 Pa. 339, 66 A. 525, 10 L.R.A.(N.S.) 202, 118 Am.St.Rep. 922, 10 Ann.Cas. 731); to have that result the act complained of must have been done within the scope of the son's employment and in conducting what is called the father's business (Coal Co. v. Rivoux, 88 Ohio St. 18, 102 N.E. 302, 46 L.R.A.(N.S.) 1091, Ann. Cas. 1914C, 1082), although the authority to so represent the father need not be expressed in words, but may be implied from the precedent course of conduct. Nor need the son have been a hired chauffeur in order to make his relation an employment by the father. Bourne v. Whitman, 209 Mass. 155, 95 N.E. 404, 35 L.R.A. (N.S.) 701; Smith v. Jordan, 211 Mass. 269, 271, 97 N.E. 761.

As to whether the son was engaged in the father's business: It is the rule, supported by the better weight of authority (although there are cases seemingly taking a contrary view), ^[1] that where a father provides an automobile for the purpose of furnishing members of his family with out door recreation, the use of the car for such purpose is within the scope of the father's business, analogously to the furnishing of food and clothing or ministering to their health. Missell v. Hayes, 86 N.J.Law, 348, 349, 91 A. 322, and following; Davis v. Littlefield, 97 S.C. 171, 81 S.E. 487; Stowe v. Morris, 147 Ky. 386, 390, 144 S.W. 52, 39 L.R.A.(N.S.) 224; Moon v. Matthews, 227 Pa. 488, 76 A. 219, 29 L.R.A.(N.S.) 856, 136 Am.St.Rep. 902; Kayser v. Van Nest, 125 Minn. 277, 146 N.W. 1091, 51 L.R.A. (N.S.) 970. And, obviously, the fact that the car was used during business hours for business purposes would not alter the rule otherwise applicable to a use (out of business hours, including Sundays), for the enjoyment and recreation of the family.

Assuming, for the purposes of this opinion, that defendant would not be liable if the accident occurred during a merely permissive use of the machine-- that is to say, while the son was driving the car for his own pleasure, and notwithstanding it was being kept in part for the recreation of the family, and an implied consent that the son use it for his own pleasure (Doran v. Thomsen, 76 N.J.Law, 754, 71 A. 296, 19 L.R.A.(N.S.) 335, 131 Am.St.Rep. 677; Parker v. Wilson, 179 Ala. 361, 368, 60 So. 150, 43 L.R.A.(N.S.) 87) ^[2] -- we think it clear that unless the tendency of the evidence as we have stated it is conclusively overcome by the testimony to which we are about to allude, it was competent for the jury to infer that there was at least an implied authority in the son to drive the car on the occasion in question, and that such driving was in the service of the father in providing recreation for the family (Stowe v. Morris, supra; Smith v. Jordan, supra; Missell v. Hayes, supra; Moon v. Matthews, supra; Bourne v. Whitman, supra; Davis v. Littlefield, supra; Kayser v. Van Nest, supra, 125 Minn.at page 279, 146 N.W. 1091, 51 L.R.A.(N.S.) 970; Guignon v. Campbell, 80 Wash. 543, 545, 141 P. 1031).

A significant feature of this case, which distinguishes it from some of the cases relied on by defendant, is the fact that all the members of defendant's family (so far as at home) were participating in the use of the car; there being no other occupant except a family guest. The importance of this consideration is illustrated by the cases of Doran v. Thomsen, supra, and Missell v. Hayes, supra. In the former case the father was held not liable for the negligence of his daughter in driving the car for her own pleasure, notwithstanding its purchase by the father for the use of his family, and his implied consent that the daughter use it for the purpose stated. In the latter case, where the accident occurred while one of the sons was driving the car, which contained also defendant's wife and daughter, together with a guest of the son and a guest of the daughter, the facts were held sufficient to support a finding that the son was acting as the servant of his father, and within the scope of his employment as such. The fact that the car was occupied by the father's immediate family and their guests was held to distinguish the case from Doran v. Thomsen.

There was, however, in the instant case, testimony on defendant's part that none of the family excepting the mother had the right to use the car without express permission from the father, that they had no right to use it when the father was absent from home, and that neither he nor the mother had given permission to use the car on this Sunday of their absence; and defendant's counsel in briefs characterize the expedition as 'surreptitious and without paternal permission, guidance, or sanction. ' Assuming that, if the above characterization must be accepted defendant would not be liable (Riley v. Roach, 168 Mich. 294, 134 N.W. 14, 37 L.R.A.(N.S.) 834; Reynolds v. Buck, 127 Iowa, 601, 103 N.W. 946), we think the jury was not conclusively bound to accept that view. The testimony presented merely a question of fact, involving credibility; it was...