Green v. Smith.*

• Decision Date: 16 January 1930
• Citation: 151 S.E. 282
• Court: Virginia Supreme Court
• Parties: GREEN. v. SMITH.*

151 S.E. 282

GREEN.

v.SMITH.^*

Supreme Court of Appeals of Virginia.

Jan. 16, 1930.

Error to Circuit Court, Pittsylvania County.

Action by Earl Green, an infant, by next friend, by notice of motion for judgment against Sam P. Smith. To review a judgment for defendant, plaintiff brings error. Reversed and remandad.

Aiken, Benton & Bustard, of Danville, for plaintiff in error.

Sinnott, May & Leaman, of Richmond, for defendant in error.

EPES, J. This is an action by notice of motion for judgment brought in the circuit court for Pittsylvania county by Earl Green, a child four years old, against Sam P. Smith, the father of James Smith, to recover damages for an injury claimed to have been negligently inflicted on Earl Green by James Smith while driving his father's automobile along College avenue in Schoolfield, a suburb of the city of Danville. The son, James Smith, is not made a party defendant.

At the conclusion of the plaintiff's evidence, the defendant, without putting in any evidence of his own, moved the court to strike out all the plaintiff's evidence on the ground that there was no evidence of any relationship of principal and agent existing between the father and son at the time of the injury. The court sustained this motion, struck out the plaintiff's evidence and instructed the jury as follows:

"The evidence in this case is insufficient to support a verdict for the plaintiff, and while under the letter of the law of Virginia a Court cannot direct a verdict, I will frankly tell you that should you bring in a verdictfor the plaintiff I would feel compelled to set it aside. With those instructions if you care to go to your room and find a verdict you can do so; otherwise, you may write up a verdict at the bar. Do you desire to go to your room and write a verdict or do you desire to remain seated and sign a verdict written by counsel for defendant?"

To which the jury replied: "We desire to remain seated and sign a verdict written here."

The jury without retiring returned a verdict for the defendant, upon which judgment was entered for the defendant.

The first assignment of error is that the court erred in striking out the plaintiff's evidence. The second assignment of error is that the court erred in instructing the jury as above set forth, in that the instruction practically amounts to directing a verdict for the defendant.

The determination of the questions raised by the first assignment of error is conclusive of the case at bar, for, if the action of the court in striking out all the plaintiff's evidence was correct, the giving of the instruction complained of could not possibly have been prejudicial to the plaintiff; but, if the court erred in striking out the plaintiff's evidence, it of course follows that the giving of the instruction was also erroneous.

It is now settled in Virginia that a motion to strike out all the plaintiff's evidence may be used wherever a demurrer to the evidence by the defendant will lie, or it plainly appears that the trial court would be compelled to set aside any verdict found for the plaintiff as being without evidence to support it. Davis v. Rodgers, 139 Va. 618, 124 S. E. 408; Meade v. Saunders, 151 Va. 636, 144 S. E. 711; Barksdale Adm'r of Terrell v. Southern Ry. Co. (Va., June, 1929), 148 S. E. 683; Hentz v. Wallace's Adm'r (Va.) 150 S. E. 389, decided November 14, 1929. See, also, Linbaugh v. Com., 149 Va. 383, 140 S. E. 135.

A motion to strike out all the evidence of the adverse party is very far reaching and should never be entertained where it does not plainly appear that the trial court would be compelled to set aside any verdict for the party whose evidence it is sought to strike out. A motion to strike out all the plaintiff's evidence is closely analogous to a demurrer to the evidence by the defendant, but with this important difference, that upon an adverse ruling by the court the defendant is entitled to have submitted to the jury both the question of the plaintiff's right to recover and the measure of recovery, while a demurrer to the evidence finally takes away from the jury all consideration of the plaintiff's, right of recovery and submits it to the court.

In considering a motion to strike out all the plaintiffs evidence, the evidence is to be considered very much as on a demurrer to the evidence. All inferences which a jury might fairly draw from plaintiff's evidence must be drawn in his favor; and where there are several inferences which may be drawn from the evidence, though they may differ in degree of probability, the court must adopt those most favorable to the party whose evidence it is sought to have struck out, unless they be strained, forced, or contrary to reason. Dove Co. v. New River Coal Co., 150 Va. 796, 143 S. E. 317; Limbaugh v. Com., 149 Va. 393, 140 S. E. 135; Goshen Furnace Corp. v. Tolley's Adm'r, 134 Va. 404, 114 S. E. 728.

Judged by these standards, we are of opinion that the court erred in striking out the plaintiff's evidence.

The family purpose doctrine which has been adopted by some of the states, and has been applied in Virginia to the particular facts shown in the case of Litz v. Harman, 151 Va. 363, 144 S. E. 477, under which the head of a family is held liable for the negligence of members of his family while driving an automobile owned by him and kept for family purpose uses, has no application to this case. There is no evidence in the record tending to show that the automobile here in question was kept by Sam P. Smith for family purpose use, or that the son had any general permission to use the car. On the contrary, such facts as do appear from the evidence warrant the inference that this automobile was not kept for family purpose use.

The record contains evidence from which the jury could have properly drawn the inference that James Smith, the son and driver of the automobile, was guilty of negligence in the operation of the car, and that such negligence was the proximate cause of the injury to Earl Green; but Sam P. Smith, the father, and owner of the automobile which inflicted the injury, was not in the car at the time of the injury, and there is no evidence tending to show that he himself was in any way guilty of any negligence.

It is well settled in the state that, in the absence of negligence on the part of the father, a father is not liable for the torts of his minor child; and that the relationship of father and minor child does not of itself impose liability upon the father for the negligent operation of his automobile by his minor son, even when the automobile is being used with the express or implied permission of the father. Such liability only exists where at the time of the injury the relation of principal and agent or master and servant existed between the father and son, and the son is acting within the scope of his authority or employment expressed or implied. Cohen v. Meador, 119 Va. 429, 89 S. E., 876; Blair v. Broadwater, 121 Va. 301, 93 S. E. 632, L. R. A. 1918A, 1011; Litz v. Harman, 151 Va. 363, 144 S. E. 477. See for cases in other states note in 36 A. L. R. 1138.

If Sam P. Smith is liable in this action, it can only be because at the time of the injury James Smith, his son, was acting as his agent or servant and within the scope of his authority or employment. The controlling question is, Is there any evidence in the record from which the jury could fairly draw the inference that at the time of the injury James Smith was acting as the agent or servant of his father and within the scope of his authority or employment? Assuming the negligence of James Smith, the son, who was driving the automobile, the facts and the testimony upon which the liability of Sam P. Smith, the father and owner of the automobile, if it exists, must be predicated, are as follows:

On Monday, September 19, 1927, James Smith, while driving his father's, Sam P. Smith's, automobile on College avenue in Schoolfield, a suburb of the city of Danville, ran over and injured Earl Green, in front of Earl Green's parents' home. The Green home is on the south side of the street and about one-fourth mile from and west of the Danville Military Institute, which is also on College avenue.

Sam P. Smith lived about two miles from this school and worked at the pump house near his home. He and his son, James Smith, were the only members of his family. Robert's pressing club is so located that in going from it to the Danville Military Institute you pass along College avenue in front of the Green home.

James Smith was at the time of the injury a young man 17 years of age, about 6 feet 3 inches tall, and weighed approximately 175 pounds; and for 4 or 5 years had been attending the Danville Military Institute. This school had opened for the session 1927-28 during the week prior to Monday, September 19, 1927, on which day Earl Geen was injured; and Sam P. Smith had entered his son therein again as a five-day boarder. That is, he boarded and roomed at the school from 6 p. m. on Monday until 4 p. m. on Saturday, and spent the week-end and his Monday holiday with his father. Monday is the regular weekly holiday at this school. James Smith spent Sunday night at his father's home in pursuance of his arrangement as a five-day boarder; and on Monday morning used his father's automobile to carry some of his clothes to a pressing club to be cleaned and pressed and to take some of his clothes to Danville Military Institute to be laundered, as his laundry was done at the school. About 10 a. m. while he was driving his father's automobile, and was on his way from the pressing club to the school, he ran over and seriously injured Earl Green in front of his parents' home.

The other facts and the inferences which might be properly drawn therefrom appear from the evidence of James Smith and his father quoted below:

James Smith on direct examination testified:

"Q. What were you doing with the car? A. I had borrowed the car to carry some clothes to be cleaned...