Lauritsen v. Lammers

• Decision Date: 15 October 1968
• Docket Number: No. 8471,8471
• Citation: 161 N.W.2d 804
• Parties: Alice C. LAURITSEN, for herself and for Lois C. Lauritsen, Jeanne M. Lauritsen, Susan C. Lauritsen, Boyd F. Lauritsen, Carroll Ann Lauritsen, and Kenneth Bruce Lauritsen, all heirs of Kenneth Lauritsen, Deceased, Plaintiffs and Appellants, v. Harris LAMMERS and Leo Lammers, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 804

161 N.W.2d 804

Alice C. LAURITSEN, for herself and for Lois C. Lauritsen Jeanne M. Lauritsen, Susan C. Lauritsen, Boyd F. Lauritsen Carroll Ann Lauritsen, and Kenneth Bruce Lauritsen, all heirs of Kenneth Lauritsen, Deceased, Plaintiffs and Appellants, v. Harris LAMMERS and Leo Lammers, Defendants and Respondents.

No. 8471.

Supreme Court of North Dakota.

Oct. 15, 1968.

Syllabus by the Court

1. For reasons stated in the opinion it is held that an instruction which limits liability to the head of a family under the family car doctrine to instances of injury which occur only 'when the head of a family provides an automobile for the use and pleasure of the members of the family and permits them to use it at will * * * under general authority to do so' is erroneous and prejudicial.

2. Under the definition of the family car doctrine given in the instruction in this case, it was prejudicial error for the trial court to refuse to give the instruction requested by the plaintiff that the family car doctrine would apply also when special or express permission to use the car on the occasion of each use had been given to the member of the family, thereby clarifying and qualifying the court's instruction on the family car doctrine.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for appellants.

Lyle Huseby, Fargo, and Norman J. Backes (on oral argument), Fargo, for respondents.

KNUDSON, Judge.

This is an action for the wrongful death of the plaintiff's husband from injuries sustained in an automobile accident. The negligence of Harris Lammers, the driver of the car, was admitted, and the only question for the jury in regard to him was the amount of damages. The car was owned by Leo Lammers, the father of Harris, and plaintiffs alleged that he was liable under the 'family car doctrine.' The jury returned a verdict against Harris in the amount of $75,000, and judgment was entered thereon. The jury did not find Leo liable. The plaintiffs moved for a new trial on the grounds that the court erred in instructing the jury, and in refusing to give a requested instruction. The motion for a new trial was denied. This appeal is from the order denying the motion for a new trial, assigning as error the same grounds as upon the motion for new trial. The plaintiff contends that under the erroneous instruction on the family car doctrine the jury would have no alternative other than to find in favor of Leo, and amounted almost to a direction by the trial judge that the jury bring in a verdict in favor of Leo, finding him not liable for the death of the plaintiff's husband, caused by the negligence of Harris.

The plaintiffs contend that the court erred in instructing the jury as follows:

The Court instructs the jury that under the laws of the State of North Dakota, when the head of a family provides an automobile for the use and pleasure of the members of the family And permits them to use it at will, they become the agents of the head of the family for the purpose of such use, which includes their own personal pleasure, and when they are so using the automobile the head of the family is liable to respond in damages for injuries resulting from their negligence. This is known as the 'family car doctrine,' and the basis of liability under the family car doctrine is that one who owns and maintains an automobile for the general use of the household is held upon grounds of public policy and in analogy to principles governing agency to make the use of such automobile for such purposes a part of his business, so that any member of the family using such automobile for those purposes under general authority to do so becomes his representative, and for whose negligence he is responsible. (Emphasis added by plaintiffs.)

And the plaintiffs also contend that the court erred in refusing to give the following instruction:

In determining the liability of an owner under the family purpose doctrine as defined in these instructions, the fact the child customarily was required to or did ask for and receive permission to use the vehicle, in no way negatives the applicability of the doctrine.

In the case at bar, Harris asked for and received permission to use the car. The plaintiff contends the trial court's use of the words 'at will' in the instructions was erroneous because it required plaintiff to establish that the head of the family must permit the members of the family to 'use it at will' to come within the family car doctrine. The plaintiff requested a qualifying instruction to the effect that because the child customarily was required to or did ask for and receive permission to use the car would not negate the application of the family car doctrine. The trial judge refused this instruction. The plaintiff argues that the words 'at will' in the instruction constituted an unfortunate phrase, was illogical, and if literally followed would almost completely disallow the application of the family car doctrine. The memorandum opinion of the trial judge on the motion for a new trial bears out and supports the contention of the plaintiff that the construction the court placed upon the phrase 'to use it at will,' especially when coupled by the trial court with the phrase 'general authority,' would negate the application of the family car doctrine when a driver obtains special permission on the occasion of each use, wherein the trial court quoted from 60 C.J.S. Motor Vehicles § 433 (1949), at p. 1075, as follows:

Indeed, it has been held that the doctrine applies only where the driver has general permission to use the vehicle, ⁶¹ and does not apply as to a member of the family who obtains special permission on the occasion of each use. ⁶² * * *

Notes 61 and 62 cite Maher v. Fahy, 112 Conn. 76, 151 A. 318 (1930); and O'Keefe v. Fitzgerald, 106 Conn. 294, 137 A. 858 (1927).

In Maher v. Fahy, supra, cited in 60 C.J.S. Motor Vehicles § 433, the court said on page 320 of 151 A.:

He had possession and use of the car on this occasion for a purpose strictly his own. He had obtained it by asking special permission from the owner. * * * (H)is use of it was restricted, and sometimes refused. These and other facts established by the evidence satisfy us that the son did not have general authority to drive this car and that it was not a 'family car' within the meaning of our law.

In O'Keefe v. Fitzgerald, 106 Conn. 294, 137 A. 858 at page 860 (1927), the court said:

We are referred to West Virginia, where it is said:

'Where one owns and maintains it (an automobile) for the comfort, convenience, pleasure, and recreation of his family, and (intrusts) its management to any member thereof, such member will be regarded as the agent or servant of the owner, making him liable in damages for the injuries sustained by a third person from the negligent management of such machine on the public roads by such agent or servant.'

Ambrose v. Young, 100 W.Va. 452, 130 S.E. 810; Beard v. Davis, 86 W.Va. 437, 103 S.E. 278.

It will be seen that this statement of the rule in West Virginia is broader than our own. One of the limitations under our rule is that the driver of the car must be shown to have had from the owner 'general authority to drive the car while it is being used as such family car; that is, for the pleasure or convenience of the family or a member of it.' Under this rule it was necessary for the plaintiff to establish that Miss Lose had general authority to use the car. The question is, as said by the trial court, a close one. She might, perhaps not unfairly, be said to be a member of the defendant's family, but it appears that she did not venture to take the car without permission; in fact, she approached the owner twice upon the matter. If she had had general authority to use it, and he was maintaining it for her use, as well as for his own and that of the other members of his family, the seeking of permission to drive the car on this occasion would manifestly have been unnecessary. She not only sought permission, but she explained her purpose and when, where, and how she wanted to use it. The record is bare of any instance where she had used the car without thus seeking permission. There appears no instance when she used it on a general authorization to do so. She always obtained 'special permission.' * * *

The rule followed by the trial court from 60 C.J.S. Motor Vehicles § 433 (1949), at p. 1075, is not applicable to North Dakota. The rule adopted in Connecticut is much more restrictive than the rule in North Dakota. In the O'Keefe v. Fitzgerald case the Connecticut court states that their rule is not as broad as the West Virginia rule, as one of the limitations of the Connecticut rule is that the driver of the car must be shown to have had 'general authority' from the owner, and that where the driver of the car receives special permission the rule is not applicable. The West Virginia rule, as discussed in O'Keefe v. Fitzgerald, is similar to the North Dakota rule as pronounced by this court in several cases.

We have reviewed all of the North Dakota cases that have passed on the family car doctrine, and find the rule to be variously stated, as follows:

Under the doctrine of respondeat superior a husband is liable for the negligent operation of an automobile owned by him and driven by his wife with his full acquiescence and consent, for purposes of business or pleasure of the family.

Vannett v. Cole, 41 N.D. 260, 170 N.W. 663 (1918), Syllabus 2.

The owner of an automobile kept and used for the business and pleasure of the family is liable for its negligent operation by his wife, when driven for such purposes with his knowledge and consent.

The owner of such automobile is liable for its negligent operation by a third person, directed or permitted by his wife, in her presence, to drive such automobile for purposes of the business or pleasure of the owner's family.

Ulman v. Lindeman, 44 N.D. 36, 176 N.W. 25, 10 A.L.R. 1440 (1919), Syllabus 1 and...