Jones v. Knapp

• Decision Date: 06 October 1931
• Citation: 156 A. 399
• Parties: JONES v. KNAPP.
• Court: Vermont Supreme Court

156 A. 399

JONES

v. KNAPP.

Supreme Court of Vermont. Washington.

Oct. 6, 1931.

Exceptions from Washington County Court; Fred G. Bicknell, Judge.

Action by Harry C. Jones against Robert E. Knapp. Judgment for plaintiff, and defendant brings exceptions.

Judgment affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Superior Judge.

Theriault & Hunt, of Montpelier, for plaintiff.

Fred E. Gleason, of Montpelier, for defendant.

THOMPSON, J.

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. 493, 133 P. 1020, 1023, 50 L. R. A. (N. S.) 59, a leading case, which involved the question of liability of the owner of a car for an injury caused while his daughter was driving it, the court 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 this there is no similitude to a lending of a machine to another for such other's use and purpose unconnected with the general purpose for which the machine was owned and kept."

In Jones v. Cook, 90 W. Va. 710, Ill S. E. 828, 830, the "family purpose" doctrine was adopted and applied where a father furnished an automobile for the pleasure of his family, including his stepdaughter, and, while the latter was driving it with her friends, with his permission, she negligently ran into the plain tiff's automobile. The court said: "We see no possible ground of difference concerning the owner's liability, whether there be but one member of the family or all members of the family in the automobile at the time of the negligent injury. If the father makes it his business or affair to furnish members of his family with an automobile for family use, and he maintains it for that purpose, just the same as it is his business to furnish them with food and clothing or to minister to their health in other ways, then he is in the furtherance of that business just as surely, when a single member of the family is driving it for his own pleasure and convenience, as if all the family were riding in it. Counsel for defendant say that defendant is not liable for the negligence of the stepdaughter in the operation of the automobile in the present case because it was none of his affair; but we hold that he made it his affair by maintaining the automobile for the very purpose for which she was using it at the time of the injury. He owned the machine and had the right to say where, how, and by whom it might be used, and impliedly, if not expressly, authorized the use to which it was put when the accident occurred. The doctrine of agency is not confined to merely commercial business transactions, but extends to cases where the father maintains an automobile for family use, with a general authority, expressed or implied, that it may be used for the comfort, convenience, pleasure, and entertainment or outdoor recreation of members of the owner's family."

In the following jurisdictions the "family purpose" doctrine, in its full scope, as above set forth, has been adopted, and it is held that the owner of the automobile is liable for injury negligently inflicted by a single member of the family while using the family car for his own exclusive pleasure or convenience, with the express or implied consent of the owner. Benton v. Regeser, 20 Ariz. 273, 179 P. 966; Boyd v. Close, 82 Colo. 150, 257 P. 1079; Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994: Baldwin v. Parsons, 193 Iowa, 75, 186 N. W. 665; Miller v. Week, 186 Ky. 552, 217 S. W. 904; Johnson v. Evans, 141 Minn. 350, 170 N. W. 220, 2 A. L. R. 891; Payne v. Leininger, 100 Minn. 75, 199 N. W. 435; Linch v. Dobson, 108 Neb. 632, 188 N. W. 227; Boes v. Howell, 24 N. M. 142, 173 P. 966, L. R. A. 19181F, 288; Wallace v. Squires, 186 N. C. 339, 110 S. E 569; Watts v. Lefler, 190 N. C. 722, 130 S. E. 630; Foster v. Farra, 117 Or. 286, 243 P. 778; Mooney v. Gilreath, 124 S. C. 1, 117 S. E. 186; King v. Smythe, 140 Tenn. 217, 204 S. W. 296, 298, L. R. A. 1918F, 293; Allen v. Bland (Tex. Civ. App.) 168 S. W. 35; Allison v. Bartelt, 121 Wash. 418, 209 P. 863, following Birch v. Abercrombie, supra; Watson v. Burley, 105 W. Va. 416, 143 S. E. 95, 64 A. L. R. 839, and note.

While it is stated in the decisions cited that the liability of the owner of a car for injury negligently inflicted by a single member of his family, while operating the family car for his own exclusive pleasure or convenience, is based upon the theory of master and servant or principal and agent because the particular purpose for which the car was being used came within the general purpose for which it was furnished and maintained, it appears clearly in some of the decisions that the "family purpose" doctrine was adopted as a matter of public policy.

In King v. Smythe, supra, the court, after holding that a father was liable for injury negligently inflicted by his adult son, a member of his family, while the son was driving his father's car for his own pleasure, on the theory that in so doing he was the agent of his father, said: "If an instrumentality of this kind is placed in the hands of his family by a father, for the family's pleasure, comfort, and entertainment, the dictates of natural justice should require that the owner should be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained. A judgment for damages against an infant daughter or an infant son, or...