Harry C. Jones v. Robert E. Knapp

• Decision Date: 06 October 1931
• Citation: 156 A. 399,104 Vt. 5
• Parties: HARRY C. JONES v. ROBERT E. KNAPP
• Court: Vermont Supreme Court

156 A. 399

104 Vt. 5

HARRY C. JONES v. ROBERT E. KNAPP

Supreme Court of Vermont

October 6, 1931

February Term, 1931.

Negligence---Automobiles---"Family Purpose" Doctrine.

In ACTION OF TORT for negligence, so-called "family purpose" doctrine, that head of family maintaining automobile for pleasure, convenience, and use of family, is liable for injuries inflicted by negligent operation of car by any member of family, rejected; and held that responsibility of head of family depends upon existence of relationship of principal and agent or master and servant neither of which arises merely because car is maintained for family use, but is to be established by settled common-law principles concerning those relationships.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the September Term, 1930, Washington County Bicknell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment Affirmed.

Fred E. Gleason for the defendant.

The negligence of the plaintiff's daughter in driving his car having contributed to the injuries to his automobile, for which he seeks to recover damages, this negligence should bar his recovery, under the so-called "family purpose" doctrine, which holds the owner of an automobile, purchased and maintained for the pleasure and general purposes of his family, liable for injuries caused by the negligent operation of the automobile while so used by members of his family, on the theory that the use was at least one of those for which the car is kept, and that the person operating it was therefore, acting as the owner's agent or servant in using it. Benton v. Regeser, 20 Ariz. 273, 179 P. 966; Boyd v. Close, 82 Colo. 150, 257 P. 1079; O'Keefe v. Fitzgerald, 106 Conn. 294, 137 A. 858; Griffin v. Russell, 144 Ga. 275, 87 S.E. 10; Patterson v. Aitken, 244 Ill.App. 264; Baldwin v. Parsons, 193 Iowa, 75, 186 S.W. 665; Rauckhorst v. Kraut, 216 Ky. 323, 287 S.W. 895; Payne v. Leininger, 160 Minn. 75, 199 N.W. 435; Lewis v. Steele, 52 Mont. 300, 157 P. 575; Linch v. Dobson, 108 Nebr. 632, 188 N.W. 227; Boes v. Howell, 24 N. Mex. 142, 173 P. 966; Watts v. Leffler, 190 N.C. 722, 130 S.E. 630; Uhlman v. Lindeman, 44 N.D. 36, 176 N.W. 25, 10 A. L. R. 1440; McNeal v. McKain, 33 Okla. 449, 126 P. 742; Foster v. Farra, 117 Ore. 286, 243 P. 778; Smith v. Jamison, 89 Pa. Super. 99; Mooney v. Gilreath, 124 S.C. 1, 117 S.E. 186; King v. Smythe, 140 Tenn. 217, 204 S.W. 296; Allen v. Bland (Tex.), 168 S.W. 35; Litz v. Harman, 151 Va. 363, 144 S.E. 377; Allison v. Bartlett, 121 Wash. 418, 209 P. 863; Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 64 A. L. R. 839; Jaeger v. Salentine, 171 Wis. 632, 177 N.W. 886 (see 67 Wis. 495, 30 N.W. 922); Dennison v. M'Norton, 142 C. C. A. (6th Cir.) 631, 228 F. 404. Theriault & Hunt for the plaintiff.

The so-called "family purpose" doctrine has never been adopted in Vermont and its adoption would be against the great weight of authority. In certain jurisdictions that once adopted it, the doctrine has been repudiated, or narrowly limited; and while the question presented has generally arisen in actions against the head of the family, right of recovery has rested on the scope of the rule of imputed negligence. See annotation, 64 A. L. R. 844, 851, et seq., and Clawson v. Schroeder (Mont.) 208 P. 924; Stumpf v. Montgomery (Okla.), 32 A. L. R. 1490, 1497--1500; Piquet v. Wazelle (Pa.), 136 A. 787; Cole v. Wright (Tex.), 18 S.W.2d 242; Mann v. Cook (Tex.), 23 S.W.2d 860; McCormack v. Griffith (Tex.), 27 S.W.2d 549; Blair v. Broadwater (Va.), L. R. A. 1918A, 1011; Green v. Smith (Va.), 151 S.E. 282; Crossett v. Goelzer (Wis.), 177 Wis. 455, 188 N.W. 627, 211 N.W. 140; Smith v. Dauber (Miss.), 125 So. 102; Robinson v. Warren (Me.), 151 A. 10; Lafond v. Richardson (N. H.), 149 A. 600; Nash v. Lang (Mass.), 167 N.E. 762; see, also, annotation 68 A. L. R. 1011, 1012, and Van Blaricom v. Dodgson, 220 N.Y. 111, L. R. A. 1917F, 363, 365.

Adoption of "family purpose" doctrine in Vermont, in addition to being against the great weight of authority elsewhere, would depart sharply from the well-settled rule confining imputed negligence to the relations of principal and agent and master and servant. Ronan v. Turnbull Co., 99 Vt. 280, 283, 284; Way v. Powers, 57 Vt. 135, 139; Carlisle v. Sheldon, 38 Vt. 440, 445.

The doctrine of imputed negligence generally is of narrow limitations. Robinson v. Cone, 22 Vt. 213, 225; Ploof v. Burlington Traction Co., 70 Vt. 509, 513; Howe v. Central Vt. Ry. Co., 91 Vt. 485, 493; Johnson's Admr. v. Rutland R. R. Co., 93 Vt. 132, 142; Davis v. Raymond, 102 Vt. 65, 68; Glidden v. Reading, 38 Vt. 52, 59; Robinson v. Leonard, 100 Vt. 1, 8--10; Loomis v. Abelson, 101 Vt. 459, 462; Round v. Pike, 102 Vt. 324, 329.

The principle contended for by defendant, if sound, must have application to every instrument potentially capable of producing injury, and not merely to an automobile. Doran v. Thomsen (N. J.), 19 L. R. A. (N. S.) 335; McGowan v. Longwood (Mass.), 23 A. L. R. 617, 619; Spence v. Fisher (Cal.), 14 A. L. R. 1083, 1086.

The "family purpose" doctrine, where adopted, generally rests upon a presumption or inference of fact that agency ex- isted, in that a person using an automobile for the benefit of the family was acting pursuant to the purposes of the head of the family in furnishing the automobile for the family use and therefore became agent of the latter. But no presumption of the essential relation can aid the defendant. Ronan v. Turnbull Co., 99 Vt. 280, 287--289; Gutzwiller v. American Tobacco Co., 97 Vt. 281, 284.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

THOMPSON

This is an action of tort for negligence in which the plaintiff seeks to recover for damage to his automobile caused by collision with the defendant's automobile near the intersection of Main and North Streets in the city of Montpelier. The plaintiff's adult daughter, Harriet Jones, was operating his automobile at the time of the collision. There was a verdict and judgment for the plaintiff. The defendant excepted.

The uncontradicted evidence shows that Harriet and a brother Harry Jones, Jr., lived with the plaintiff as members of his family. Sometimes the plaintiff used his automobile in his business, but it was used chiefly for the general purposes of his family as a pleasure car, and he, Harriet, and Harry, Jr., drove it for such purposes. Harriet and Harry, Jr., usually obtained the permission of the plaintiff to take the car when they wanted to use it, but did not have to do so always, and sometimes they did not use it when they wanted to, although it was not in use at the time. Harriet is a piano teacher. On the day of the collision she asked and received the permission of the plaintiff to use the car in going to the Union School to get a list of names of prospective pupils. The plaintiff knew the purpose for which she was to use the car, but did not know just where she was going with it. The collision took place while she was on her way to the Union School. Her use of the car on this occasion was wholly on her own business, and not on any business of the plaintiff.

While it is conflicting, there is evidence in the record from which it can fairly be inferred that Harriet was negligent in the operation of the car at the time of the collision, and that such negligence was a proximate cause of the collision.

The defendant requested the court in the trial below to adopt the so-called "family purpose" doctrine as the law of the case, and to rule that, if Harriet was guilty of contributory negligence in the operation of plaintiff's car at the time of the collision, such contributory negligence barred a recovery, although the defendant was also guilty of actionable negligence. The court refused to rule as requested, and ruled, and charged the jury, that the plaintiff had a right to let his daughter use the car, "and in operating the car, in this case, negligence on her part, if you find any, which was a proximate cause of this accident and damage, is not chargeable to him, it is not imputable to the owner of the car, who is the plaintiff in this case."

The only question argued by the defendant is whether the court below erred in refusing to adopt the "family purpose" doctrine as the law of the case. The question is raised in several forms, but it is clearly raised by the exceptions of the defendant.

While the question raised by the defendant is before this Court for the first time, the "family purpose" doctrine has been invoked in most, if not all, the other jurisdictions in this country, under many and varied circumstances and conditions, and the decisions cannot be reconciled.

The doctrine is that, where the head of a family maintains an automobile for the pleasure, convenience, and use of his family, he is liable for injuries inflicted in the negligent operation of the car while it is being used by members of the family for their own pleasure or purpose, on the theory that it is being used for the purpose for which it was furnished and is maintained, and that, in operating it, the member of the family is acting as the agent or servant of the owner. In its full scope, the doctrine applies equally, whether the member of the family who was driving the car was alone or was accompanied by other members of the family. Some courts, however, even those that emphasize the point that the car was kept for family use, draw a distinction between the two cases.

In all cases hereinafter mentioned, the automobile was maintained by the owner for the pleasure, convenience, and use of the members of his family.

In Birch v. Abercrombie, 74 Wash. 486, 133 P 1020, 1053, 50 L. R. A....