Jennings v. Campbell

• Decision Date: 20 November 1942
• Docket Number: 31398.
• Citation: 6 N.W.2d 376,142 Neb. 354
• Parties: JENNINGS v. CAMPBELL
• Court: Nebraska Supreme Court

6 N.W.2d 376

142 Neb. 354

JENNINGS v. CAMPBELL

No. 31398.

Supreme Court of Nebraska

November 20, 1942

Syllabus by the Court.

1. In this case, involving the application of the family purpose doctrine to the use of a car, the evidence is examined and it is held that the case does not call for an application of the rule involving a surreptitious taking, a use in violation of orders or a use after authority had been specifically revoked.

2. Where the testimony that the driver of a family purpose car did not have permission to use it is undisputed by other parol testimony, the jury have the right to test the credibility of the witnesses by their self-interest and to weigh that testimony against facts and circumstances in evidence from which permission to drive may be properly inferred.

3. The family purpose doctrine is not a restatement of the rules of principal and agent or master and servant, but rather is a development from those principles.

4. The rule is based upon public policy and is in the nature of an exception to the rule that a master or principal is not liable for the negligent conduct of his servant or agent unless in driving he is pursuing an employment or agency for the owner.

5. Where a family purpose car is being used by a member of the family and an accident follows from the use, the rule does not make it necessary that the injured party be able to prove that the driver had the authority of the owner to drive the car at the time at the place of the accident.

Leon L. Hines, of Benkelman, and Butler, James & Morrison, of McCook, for appellant.

C. A. P. Falconer, of Atwood, Kan., and Victor Westermark, of Benkelman, for appellee.

Heard before SIMMONS, C. J., and EBERLY, CARTER, MESSMORE, and YEAGER, JJ.

SIMMONS Chief Justice.

This is an action for damages, arising from the death of plaintiff's intestate, caused by an automobile collision between a car driven by the defendant Leonard Campbell and the deceased Henry A. Jennings. The defendant Earl Campbell, owner of the car involved in the accident, is the father of the defendant Leonard Campbell, a minor not yet 16 years old at the time of the accident. Judgment was for the plaintiff. The father alone appeals. The negligence of the defendant Leonard Campbell is not an issue in this appeal. The appeal presents the propositions that the verdict of the jury is not supported by sufficient evidence and is contrary to law.

The evidence necessary to decide the question here presented goes to the use of the car by the son and the liability of the father for the actions of the son in driving the car.

The father's family consisted of his wife, two sons, a daughter and the children's grandmother. The car involved in the accident was purchased in January, 1940, and was used "for the family use." The father drove it as did an older son Lawrence. The son Leonard was not given specific permission to use it. The keys, however, were left, one set in the ignition and one set in a car pocket when it was not in use. The son Leonard had taken it and used it on several occasions prior to April, 1940, about which the father was advised shortly after each use. He had some of his boy friends with him on those occasions. On a Sunday in April about a month before the accident in question, Leonard had taken the car from in front of the home without his father's knowledge and, accompanied by other boys, had driven it out of town. Mechanical difficulties developed, and the car was pushed home. In the meantime the father had discovered its absence, he and Lawrence went hunting for it, returning home they discovered it had been returned to the garage. Leonard and the other boys were hiding in the garage. The other boys were sent home, Leonard was punished and was told that he was not to drive the car "any more." The keys at that time were taken out of the car and thereafter remained, except as herein set out, one set in the possession of the father and one set in the possession of Lawrence.

On the morning of May 23, 1940, the father told Leonard to wash the car. He told Lawrence to drive it out of the garage for that purpose. That was done. Leonard asked the father for the keys so that he could turn it around in the washing. The father gave the keys to him and went to his place of business. Leonard took the car to the schoolhouse a few blocks from the home, parked it, took the keys with him and went in to take an examination. The father, driving another car called a "pick up" and used in his business, passed the schoolhouse about 10 a. m. and saw the car parked at the school, with a number of boys sitting in it. He asked about Leonard and was told that he was taking an examination. He told the boys to tell Leonard, when he came out of the examination, to take the car back home. This message was given to Leonard by one of the boys. Leonard said that he thought he had heard the pick up. Others of the boys told Leonard that the father left no such message. Leonard, with several of the boys in the car, drove it through town to the swimming hole, found the water too cold to swim, decided to take a different road home, and while driving at 80 miles an hour on a country road ran into the Jennings car, causing the severe injuries to Jennings from which his death occurred several weeks later.

It is clear that the father had, prior to April, 1940, known that Leonard was using the car for extended trips and was accompanied by some of his boy friends; and the testimony of the father and Lawrence is that after the trip in April, 1940, Leonard was positively forbidden to further drive the car. The father appears to have had some doubt about the efficacy of his instructions for he removed access to the keys from Leonard.

On the morning of the accident, however, he placed the keys in Leonard's possession and made it possible for Leonard to drive the car if he again saw fit to disobey his father's orders. Leonard disobeyed those instructions. The father discovered that fact when he found the car at the schoolhouse. He did not regain possession of the keys, he allowed Leonard to keep control of the car, he did not instruct him not to drive the car, but rather left instructions that Leonard was to drive the car "back home." The father testified that he thought Leonard would do as he was told. Leonard did drive the car, but in doing so went on a trip not specifically authorized, and while so doing the fatal accident occurred.

Is the father liable under the family purpose doctrine, which this court has followed and stated as follows: "Where the head of a family has purchased or maintains a car for the pleasure of his family, he is, under the so-called 'family purpose' doctrine, held 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, on the theory that it is being used for the purpose for which it is kept, and that in operating it the member of the family is acting as the agent or servant of the owner. *** Where the car is kept for the use and pleasure of the family, and one member of the family is using it for his individual pleasure, or for one of the family purposes for which it is kept, it comes strictly within the reason of the rule that, in such use, the member of the family is acting as the agent, in furthering the purposes of the owner, as truly as though other members of the family were in the car with him, and that the owner can be held responsible for damages resulting from the negligent operation of the car while so used." Linch v. Dobson, 108 Neb. 632, 188 N.W. 227, 228. See, also, Stevens v. Luther, 105 Neb. 184, 180 N.W. 87; Hogg v. MacDonald, 128 Neb. 6, 257 N.W. 274.

Defendant advances the proposition that the family purpose doctrine has no application where the car is taken surreptitiously or in violation of orders, or where the general authority to drive has been specifically revoked. Defendant states that the evidence is undisputed on that point. Here, however, the car was not surreptitiously taken, nor taken in violation of orders. Here the defendant knew that the son had the keys, the car, the control and the propensity to drive it, and while it may have been taken to the schoolhouse by the son in...