Gates v. Mader

• Citation: 147 N.E. 241,316 Ill. 313
• Decision Date: 21 April 1925
• Docket Number: No. 16302.,16302.
• Parties: GATES v. MADER.
• Court: Supreme Court of Illinois

316 Ill. 313

147 N.E. 241

GATES

v.MADER.

No. 16302.

Supreme Court of Illinois.

Feb. 17, 1925.

Rehearing Denied with Modification April 21, 1925.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Francis S. Wilson, Judge.

Action by Phillip Gates against George Mader. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Affirmed.

Dunn, Thompson, and De Young, JJ., dissenting.

Cooke, Sullivan & Ricks, Bowles &Bowles, and Orville D. Stuart, all of Chicago (Oliver R. Barrett, of Chicago, of counsel), for plaintiff in error.

John A. Bloomingston, of Chicago, for defendant in error.

FARMER, J.

This case comes to this court for review by the allowance of a petition for writ of certiorari. The parties will be referred to as plaintiff and defendant, as they were in the trial court.

Phillip Gates, plaintiff, sued George Mader, defendant, for a personal injury he sustained by being struck by defendant'sautomobile while driven by his son. The declaration alleged the negligent operation and control of the automobile and due care and caution of plaintiff. Defendant filed special pleas, alleging that at the time of the injury he did not drive, operate, or control the automobile personally or by his agent or servant. He did not deny being the owner of the automobile. Plaintiff recovered a judgment against defendant, which the Appellate Court affirmed, and this court granted defendant's petition for a writ of certiorari to review the judgment.

No question is involved as to the negligent operation of the automobile or the due care and caution of the plaintiff. Defendant relies on his special pleas as a complete defense. He is an osteopathic physician and owns an automobile, which is used by him in making professional calls and for the pleasure of his family in driving about in the parks and other places. Defendant's wife could not drive the car, but she had the permission and the privilege, when defendant could not drive for the family, of taking the car out for pleasure and getting some one else to drive it. Defendant's son, who was driving the car at the time of the accident, was 24 years old, was employed at and lived in the South Shore Hospital, and visited his parents about once a week. Defendant testified he never objected to his son driving the car or to taking the family out in it for pleasure. He testified he did not know of the particular drive when the accident occurred until after it was over. The son, who was driving the car, was named Ervin Mader. In the car with him at the time of the accident were his mother, two sisters, a niece of Mrs. Mader, and a lady friend and her daughter. The women had, some time before the day of the accident, made a luncheon engagement at the home of Mrs. Kaiser, a lady friend some distance away. They expected to be at Mrs. Kaiser's home about 1 o'clock and planned to go by street railway. The night before the accident defendant's wife called up a member of the party and said they would go in an automobile. Ervin, the son, had returned home the evening before the accident, and agreed to drive the family in the car to the luncheon. While on their way the accident happened.

Defendant contends this case is controlled by the decision in Arkin v. Page, 287 Ill. 420,123 N. E. 30, 5 A. L. R. 216, and plaintiff contends it is controlled by Graham v. Page, 300 Ill. 40, 132 N. E. 817. In the Arkin Case the son was not using the car for pleasure or for any family purpose. He was driving alone to a school (Lewis Institute) to see if he could register as a student in the summer school. His father knew nothing about his intention to attend the school, and knew nothing about his taking the car from the garage to drive to the institution. The son had never talked to the father about going to the school, and intended to pay his own tuition out of money he had in the bank. The father knew the son was in the habit of driving the car, and did not object. In the Graham Case a 16 year old daughter of the owner of the car was driving it at the time of the accident, and no member of her family was with her. The daughter was driving to a cobbler's to get a pair of shoes which had been left to be repaired. The court held she was engaged in performing the duty and business of her father, and the relation of agency existed. It was decided in the Arkin Case that the mere relationship of parent and child did not create the relation of servant or agent, but that, even if it did create such relationship, the principle would apply that an agent or servant's negligence, when not acting for his principal, but engaged in business of his own and pursuing his own interests exclusively, does not render the principal liable. The Arkin Case cites several decisions which support it, and refers to others holding the contrary.

It is not denied that the weight of authority at the time the Arkin Case was decided did not support the decision, but it is contended that since that decision the weight of authority has shifted, and now supports it, and it is asserted that a majorityof the states are aligned against what counsel call the ‘family purpose’ doctrine. The authorities are in great conflict. Some states have held a father, the owner of the car, liable for his son's negligence when the son is the only member of the family occupying the car. Many states hold the father liable when other members of the family are in the car, some cases hold liability exists only when other members of the family are in the car, and some that the father is not liable, regardless...