Hutchins v. Haffner

• Decision Date: 04 June 1917
• Docket Number: 8652.
• Parties: HUTCHINS v. HAFFNER.
• Court: Colorado Supreme Court

167 P. 966

63 Colo. 365

HUTCHINS v. HAFFNER.

No. 8652.

Supreme Court of Colorado, En Banc.

June 4, 1917

Rehearing Denied Oct. 8, 1917.

Error to District Court, City and County of Denver; W. D. Wright Judge.

Action by Otto Edmonte Haffner against Ralph B. Hutchins and wife. Judgment for plaintiff, and defendant named brings error. Affirmed.

White C.J., and Teller, J., dissenting.

West &amp Strickland and K. D. Battle, all of Denver, for plaintiff in error.

Dana &amp Blount, of Denver, for defendant in error.

ALLEN J.

The defendant in error, plaintiff below, brought suit against a husband and wife, defendants below, to recover damages for injuries resulting from a collision between a motorcycle, on which plaintiff was riding, and an automobile owned by the husband, one of the defendants, and operated at the time of the accident by his wife the other defendant. Both the husband and the wife were accustomed to drive the automobile at pleasure. The wife had the husband's general permission to drive the automobile whenever and wherever she desired. At the time of the accident the wife was driving the machine for her own pleasure accompanied by one of her lady friends. The husband did not know at the time that the machine was being used, but it was used under the general permission before mentioned. It appears to be conceded, also, that the automobile had been purchased by the husband for the purpose of being used by himself and his wife, or either of them, for their pleasure, comfort, recreation, and convenience, and for the purpose of entertaining themselves and their friends and guests. Judgment was rendered against both defendants, but the husband only has sued out a writ of error.

The first and main question presented, and involved in the first 13 assignments of error, is the liability of the husband, plaintiff in error, under the facts as hereinbefore stated, and assuming that the wife was negligent, and liable in damages to the plaintiff below. It is settled that in this state a husband is not liable for the tort of his wife, committed during coverture and without his presence, and in which he in no manner participated. Schuler v. Henry, 42 Colo. 367, 94 P. 360, 14 L.R.A. (N. S.) 1009; Tuttle v. Shutts, 43 Colo. 534, 96 P. 260. It is also clear that the husband in this case is not liable as a bailor of the automobile for the negligence of the wife as bailee. 5 Cyc. 212. The liability of the husband, if any exists in this case, must be based upon the principal and agent or master and servant theory. The cases hereinafter cited deal with that theory under facts similar to those in the case at bar. The theory is of the same force and effect, whether it is sought to hold a husband liable for the negligence of his wife, or the father for the negligence of his child in operating an automobile under the circumstances existing in these cases.

The decisions bearing upon the liability of an owner of an automobile, kept for family use, for the negligence of a member of his family in driving the machine with his consent, cannot be reconciled. A majority of this court have chosen to adopt the doctrine that a husband is liable for an injury inflicted by his automobile, which he purchased for family use, while it was being operated by his wife solely for her own pleasure under his general permission to use the machine whenever and wherever she pleased, upon the theory that the wife was the husband's agent in carrying out one of the purposes for which the car was purchased and owned. This rule is supported by the case of Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L.R.A. (N. S.) 59, wherein it is said:

'It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair--that is, his business--and any one driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one as well as by all.'

In that case it was held that a daughter, in using her father's automobile for her own pleasure, is his servant in doing so, if he purchased and kept the automobile for the use of his family. The father was held liable for his daughter's negligence in driving the automobile. The liability was based, not on the relationship of parent and child, but on the relationship of agency or service. The case of Birch v. Abercrombie, supra, has been approved and followed in two later Washington cases, and approvingly cited in a number of other cases. In Guignon v. Campbell, 80 Wash. 543, 141 P. 1031, where a married woman owned an automobile as her separate property, and kept it for family purposes, it was held that she was liable for an injury resulting from its negligent operation by her son, who was using the car to drive a servant to a street car. In Switzer v. Sherwood, 80 Wash. 19, 141 P. 181, Ann.Cas. 1917A, 216, where an automobile was owned by a husband and wife as a community, and used for family purposes and in connection with the business of selling real estate, the owners were held liable for an injury inflicted by the car when driven by a daughter of the owners.

Adopting the reasoning in Birch v. Abercrombie, supra, it was held in Lewis v. Steele (1916) 52 Mont. 300, 157 P. 575, that a father was liable for an injury resulting from the negligent operation of his automobile, where it was kept for family use, and his sons were relied upon to operate it for the family pleasure, and, at the time of the injury, his son was driving some of his friends to a dance, and, after leaving them, intended to return for his mother and father, to take them to the dance; it being held that he was acting as his father's servant. In Davis v. Littlefield, 97 S.C. 171, 81 S.E. 487, an owner of an automobile kept for family use has been held liable for an injury inflicted by the negligent operation of the car by his son, while he was using it for his own pleasure, where he was permitted to use the car whenever he saw fit. In Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, L.R.A. 1916F, 216, where recovery was sought against an owner who kept a car for family use, the petition in that case, stating that the car, at the time of the injury, was being driven by the owner's son for the pleasure of himself and friends, was held good on demurrer. In accord with the foregoing cases are the following: Marshall v. Taylor, 168 Mo.App. 240, 153 S.W. 529; Lemke v. Ady (Iowa) 159 N.W. 1011; Stowe v. Morris, 147 Ky. 386, 144 S.W. 52, 39 L.R.A. (N. S.) 224; Daily v. Maxwell, 152 Mo.App. 415, 133 S.W. 351. Other cases to the same effect are: Missell v. Hayes, 86 N. J. Law, 348, 91 A. 322; Allen v. Bland (Tex.Civ.App.) 168 S.W. 35; McNeal v. McKain, 33 Okl. 449, 126 P. 742, 41 L.R.A. (N. S.) 775; Moon v. Matthews, 227 Pa. 448, 76 A. 219, 29 L.R.A. (N. S.) 856, 136 Am.St.Rep. 902; Ploetz v. Holt, 124 Minn. 169, 144 N.W. 745; Kayser v. Van Nest, 125 Minn. 277, 146 N.W. 1091, 51 L. R.

A. (N. S.) 970; Crawford v. McElhinney, 171 Iowa 606, 154 N.W. 310.

In section 653, Berry on Automobiles (2d Ed.), it is said:

'The rule is followed, in most of the states in which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and his family is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.'

Contrary to the doctrine adopted by this court are, among others, the following cases: Van Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443; Tanzer v. Read, 160 A.D. 584, 145 N.Y.S. 708; Maher v. Benedict, 123 A.D. 579, 108 N.Y.S. 228; Doran v. Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L.R.A. (N. S.) 335, 131 Am.St.Rep. 677; McFarlane v. Winters, 47 Utah. 598, 155 P. 437, L.R.A. 1916D, 618.

We think that the holdings in the cases last cited, in so far as they refuse to regard the driver of an automobile as the agent or servant of the owner,...