Eagon v. Woolard

• Decision Date: 22 October 1940
• Docket Number: C. C. No. 630.
• Citation: 11 S.E.2d 257,122 W.Va. 565
• Parties: EAGON v. WOOLARD et al.
• Court: West Virginia Supreme Court

11 S.E.2d 257

122 W.Va. 565

EAGON v. WOOLARD et al.

C. C. No. 630.

Supreme Court of Appeals of West Virginia.

October 22, 1940

Clay D. Hammond, of West Union, and John C. Southern, of Clarksburg, for plaintiff.

Stathers Stathers & Cantrall, of Clarksburg, for defendants.

FOX Judge.

The plaintiff, June Marie Eagon, an infant, was injured in an automobile accident in Doddridge County on the 20th day of May, 1939, and prosecutes this action in the Circuit Court of Harrison County against Herbert Woolard, the owner of the automobile in which she was riding, his son, Herbert Woolard Jr., and Elmer G. Brake, to recover damages for her injuries. The Woolards filed separate demurrers to the declaration, which were sustained by the court, and the questions arising thereon are certified to this Court for decision.

From the allegations in the declaration we find that the automobile involved was owned by Herbert Woolard; that on the day of the accident Herbert Woolard, Jr., was permitted to use the automobile, and that he invited the plaintiff and Brake to ride therein as his guests; that Brake was operating it at the time of the injury complained of, and that such injury was caused by his negligent operation thereof. It is alleged that Herbert Woolard, Jr., was the agent of the owner, and that when Brake was requested and permitted by him to operate the automobile, he, Brake, became the agent of both the owner and Herbert Woolard, Jr., by reason whereof liability for the injuries sustained by the plaintiff attached to all of the defendants.

A number of questions involving the form of the declaration are raised. It is argued that the declaration fails to set out with sufficient clearness the alleged agency of Brake, and fails to allege a state of facts which would make Herbert Woolard, Jr., liable for the alleged negligent acts of Brake. It is contended that the younger Woolard, being an infant, as appears from the record although not from the declaration could only be held liable for a tort committed by him personally or under his express direction, and that the declaration fails to allege a situation under which such liability could arise; it is further contended that burden is on the plaintiff to show that she was not guilty of contributory negligence; and, generally, that the declaration fails to state a case of liability against the owner of the automobile under the family purpose doctrine.

We think the declaration is sufficient to acquaint the defendants with the nature of the claim against them. While negligence is alleged in general terms, we have been cited to no authority which would warrant us in sustaining the demurrer for that reason. If good grounds be shown therefor, defendants would be entitled to a bill of particulars under Code, 56-4-19. We think also that the declaration states a case against Herbert Woolard, Jr., because it alleges that the automobile was operated by Brake "under the management, supervision and control of the defendant, Herbert Woolard, Jr." The management, supervision and control imply direction of the manner in which the automobile was operated. We do not think it was necessary for the plaintiff to aver her lack of contributory negligence. The rule is that if the declaration on its face shows probability of contributory negligence on her part, it would be her duty to negative that probability, but as we read the declaration we find nothing therein from which contributory negligence on the part of the plaintiff can be deduced or presumed, as was the case as applied to evidence, in Browning v. Tolley, 111 W.Va. 548, 163 S.E. 10.

We now come to the question of whether or not, under the allegations of the declaration, there is liability on Herbert Woolard, the owner of the automobile involved in the accident. We think the declaration clearly states a case coming within what is known as the family purpose doctrine, had the automobile been operated by Herbert Woolard, Jr., the son of the owner. While the courts are divided on the wisdom of the family purpose doctrine, it is well established in this state by the decisions of this Court. Jones v. Cook, 90 W.Va. 710, 111 S.E. 828; Aggleson v. Kendall, 92 W.Va. 138, 114 S.E. 454; Ambrose v. Young, 100 W.Va. 452, 130 S.E. 810; Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 64 A.L.R. 839; Thalman v. Schultze, 111 W.Va. 64, 160 S.E. 303; Wyant v. Phillips, 116 W.Va. 207, 179 S.E. 303. We think it is a wholesome doctrine and are not disposed to depart therefrom. The cases cited thereon relate to liability occasioned by use of an automobile by members of the owner's family, and none of them covers the case now presented. The question, therefore, is whether or not the family purpose doctrine shall now be held to impose liability upon the owner of an automobile for the negligence of a third person who operates the same at the request of and under the direction and supervision of a member of the owner's family.

The liability of the owner of an automobile for its negligent use by members of his family is, in this jurisdiction, based upon the theory of agency. It is assumed first that the owner purchases the automobile for a family purpose, and that when he permits the use thereof by members of his family for their pleasure and recreation, those who use the car are the agents of the owner in furtherance of his original purpose. In this state we do not accept the doctrine that the automobile is a dangerous instrumentality. Jones v. Cook, supra. The agency basis of liability is said to involve a legal fiction which many courts think...