Jennings v. Campbell
| Citation | 6 N.W.2d 376,142 Neb. 354 |
| Decision Date | 20 November 1942 |
| Docket Number | No. 31398.,31398. |
| Parties | JENNINGS v. CAMPBELL |
| Court | Supreme Court of Nebraska |
JENNINGS
v.
CAMPBELL
No. 31398.
Supreme Court of Nebraska.
Nov. 20, 1942.
Appeal from District Court, Dundy County; Eldred, Judge.
Action by Lelia M. Jennings, administratrix of the estate of Henry A. Jennings, deceased, against Earl Campbell, impleaded with Leonard Campbell, for death of plaintiff's intestate in automobile collision. From a judgment for plaintiff, defendant Earl Campbell appeals.
Affirmed.
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.
[6 N.W.2d 377]
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...
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