Hogg v. MacDonald

• Decision Date: 23 November 1934
• Docket Number: 29008
• Citation: Hogg v. MacDonald, 128 Neb. 6, 257 N.W. 274 (Neb. 1934)
• Parties: F. C. HOGG, ADMINISTRATOR, APPELLEE, v. ELIZABETH MACDONALD, APPELLANT
• Court: Nebraska Supreme Court

257 N.W. 274

128 Neb. 6

F. C. HOGG, ADMINISTRATOR, APPELLEE, v. ELIZABETH MACDONALD, APPELLANT

No. 29008

Supreme Court of Nebraska

November 23, 1934

APPEAL from the district court for Hall county: EDWIN P. CLEMENTS JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. The family purpose doctrine in the law applicable to automobile accidents and resulting damages is recognized in Nebraska.

2. " The owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept." Stevens v. Luther, 105 Neb. 184, 180 N.W. 87.

3. The family purpose doctrine is a development of the rules applicable to the relation of master and servant and principal and agent, which have been extended to meet a new situation brought about by the common use of the automobile with the owner's permission, by members of his family for whom he provides and maintains it.

4. To extend the family purpose doctrine in automobile law to an employer with whom employee makes his home, there being between them no ties of blood, it is essential to show that employer was under obligation to support employee, that the car was maintained by employer, that employee had general authority to use it for his own convenience, and that he used it for a purpose for which it was maintained at the time his actionable negligence arose.

Appeal from District Court, Hall County; Clements, Judge.

Action by F. C. Hogg, administrator of the estate of Andrew Y. McMullen, deceased, against Elizabeth MacDonald. From the judgment, defendant appeals, and plaintiff cross-appeals.

Judgment reversed, and cause remanded, with directions.

Chambers & Holland, C. Russell Mattson, Prince & Prince and Lewis W. Heyde, for appellant.

H. G. Wellensiek and B. J. Cunningham, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY and PAINE, JJ., and REDICK, District Judge.

OPINION

ROSE, J.

This is an action to recover damages in the sum of $ 25,145 for alleged negligence causing an automobile accident in which Andrew Y. McMullen was fatally injured. The accident occurred about four miles north of Shelton, in Buffalo county, October 14, 1932, at an intersection of two highways, one running north and south and the other east and west. McMullen died October 18, 1932, as a result of his injuries, leaving surviving him his widow, two sons and three daughters. F. C. Hogg, administrator of decedent's estate, is plaintiff and Elizabeth MacDonald is defendant.

While Charles Flynn was driving north alone in a Buick sedan owned by defendant, it collided with a Dodge coupe owned and driven by John D. Stack, in which McMullen was riding at the time of the collision. Due care on the part of decedent and Stack, who came to the intersection from the east and there turned south, was pleaded in the petition, which alleged that defendant approached from the south in a reckless and negligent manner on the west side of the highway at approximately 70 miles an hour, thus causing the collision and the resulting injuries; that Flynn, when alone, was by habit a reckless and careless driver of the Buick sedan at a high rate of speed, a fact known to defendant who entrusted him with her car; that she was a childless widow residing on a farm and that her family consisted of herself and defendant, who made his home with her; that her Buick sedan was a family car purchased, used and maintained as such by her for the joint use of herself and Flynn; that with her knowledge and consent it was being used by him at the time of the collision for the purpose for which it was purchased and maintained.

In an answer defendant admitted that an accident occurred about the time and place pleaded in the petition and denied each and every other allegation therein. Defendant alleged also that the accident was caused by the negligence of Stack and decedent, giving details, who were then engaged in a joint enterprise. The reply to the answer was a general denial.

Upon a trial of the issues the jury rendered a verdict in favor of plaintiff for $ 16,863.30, which was reduced by remittitur to $ 13,473.30. From a judgment for the latter sum, defendant appeals.

On appeal it is elaborately argued by defendant that the following instructions given by the court to the jury contain prejudicial error, when considered with the evidence:

"You are instructed that one who furnishes an automobile for the pleasure and convenience of his family makes the use of such vehicle for such purposes his affair or business, and any member of his family driving the vehicle with his consent, either express or implied, and for the purpose for which it is furnished, is the owner's agent and the owner is liable for his negligence.

"You are instructed that the question whether or not Charles Flynn, at the time of the accident and injury complained of, was a member of the family of Elizabeth MacDonald, is to be determined by you from the evidence and all the facts and circumstances in the case, and in this regard you are instructed that to be a member of a family it is not essential that a person be a relative of other members of the family. It is essential, however, that he should occupy a position in the household analogous to that usually held by a relative living with other relatives in a family. He should have assumed the duties and have been accorded the privileges of such a relative. The fact that a person is living in a household, as an employee, does not in itself make him a member of a family within the rule of the family purpose law. The bond between him and the head of the family must be stronger than that between master and servant, the duties assumed by him must be different than those of a hired employee and the privileges accorded him in the family other than those usually accorded a servant for satisfactory service."

The family purpose doctrine in the law applicable to automobile accidents and resulting damages has been recognized in Nebraska, the rule being first stated as follows:

"The owner of an automobile kept for family purposes is liable for injuries inflicted upon a...