Green v. Smith

• Citation: 153 Va. 675
• Parties: EARL GREEN, AN INFANT BY NEXT FRIEND, v. SAM P. SMITH.
• Decision Date: 16 January 1930
• Court: Supreme Court of Virginia

Page 675

153 Va. 675

EARL GREEN, AN INFANT BY NEXT FRIEND, v. SAM P. SMITH.

Supreme Court of Virginia, Richmond.

January 16, 1930.

Absent, Chichester, J.

1. APPEAL AND ERROR — Directing Verdict — Harmless Error. — In the instant case the court struck out all the evidence for the plaintiff, and plaintiff in error claims that in an instruction to the jury the court practically directed a verdict for defendant.

Held: 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 follows that the giving of the instruction was also erroneous.

2. EVIDENCE — Striking out — Motion to Strike out all Evidence for a Party — When Motion Lies. — In Virginia 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.

3. EVIDENCE — Striking out — Motion to Strike out all Evidence for a Party — When not Entertained. — 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.

4. DEMURRER TO THE EVIDENCE — Motion to Strike out Plaintiff's Evidence — Analogy and Difference. — 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.

5. DEMURRER TO THE EVIDENCE — Motion to Strike out Plaintiffs' Evidence — Inferences which Might be Fairly Drawn from the Evidence. — In considering a motion to strike out all the plaintiff's evidence, the evidence is to be considered very much as on a demurrer to the evidence. All inference 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.

6. AUTOMOBILES — Family Purpose Doctrine — Case at Bar. — The family purpose doctrine 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 been applied in Virginia but has no application to the instant case, there being no evidence to show that the automobile in question was kept by the father for family purpose use, or that his son had any general permission to use the car. On the contrary, such facts as do appear from the evidence warrant the inference that the automobile was not kept for family purpose use.

7. PARENT AND CHILD — Torts — Negligence — Liability of Parent for Negligence of Minor Child — Operation of Automobile by Minor Son. — In this State, in the absence of negligence on the part of the father, a father is not liable for the torts of his minor child; and 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.

8. PARENT AND CHILD — Automobiles — Common Law Liability of Father — Law not to be Changed by Judiciary. — The advent of the automobile has no magic power to change and rewrite the common law with reference to the liability of a father for the negligent use of an instrumentality which he permits his minor son to use; and if experience has demonstrated that the use of automobiles requires that the owner of the automobile be held liable for the negligence of his minor son, or other persons, in cases in which he would not be liable were the son, or other person, using some other instrumentality of his, the change should come from the legislature and not by judicial pronouncement.

9. PARENT AND CHILD — Negligence — Liability of Parent — Child Placed in School — Acts of Child in Attendance. — The fact that a father has placed his minor son in school and is requiring him to attend school does not make the son the agent or the servant of the father in the performance of all acts of the son incident to or even necessary to his attendance upon the school or incident to his comfort, convenience or pleasure while in attendance upon the school, even though the specific act be done with the knowledge and permission, express or implied, of the father, and with an instrumentality owned by the father.

10. PARENT AND CHILD — Negligence — Liability of Parent — Child Placed in School. — When a father has placed his son in a school he makes the education of his son his business or undertaking; but the son nevertheless remains an independent agent in doing for himself those things which are primarily his own independent design, even though such things are incidental to his attendance upon the school he is required by his father to attend, and is not acting as the agent of his father so as to render the father liable for his torts.

11. PARENT AND CHILD — Automobiles — Action against Father for Negligence of Minor Son — Striking out all Evidence for Plaintiff — Case at Bar. — The instant case was an action by plaintiff against defendant for injuries incurred by plaintiff through the negligence of defendant's son in operating defendant's automobile. If defendant's son was acting of his own volition, without any assertion of control by his father at the time plaintiff was injured, then defendant was not liable. But if defendant was directing the action of his son and requiring such action from him at the time plaintiff was injured, defendant was liable. There was nothing in the testimony of the son to show that he was acting under the control or direction of his father, but there were expressions in the father's testimony from which the jury might have fairly drawn the inference that the father was exercising his authority and control over the son at the time of the injury to plaintiff.

Held: That although it might be that the more probable inference from the testimony of the father was that the son was acting on his own volition, yet the court erred in striking out all the evidence for the plaintiff.

Error to a judgment of the Circuit Court of Pittsylvania county, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Aiken, Benton & Bustard, for the plaintiff in error.

Sinnott, May & Leaman, for the defendant in error.

EPES, J., delivered the opinion of the court.

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 verdict for 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...