Linville v. Nissen

• Decision Date: 23 April 1913
• Citation: 77 S.E. 1096,162 N.C. 95
• Parties: LINVILLE v. NISSEN et al.
• Court: North Carolina Supreme Court

77 S.E. 1096

162 N.C. 95

LINVILLE v. NISSEN et al.

Supreme Court of North Carolina

April 23, 1913

Appeal from Superior Court, Forsyth County; Allen, Judge.

Action by A. Y. Linville against C. F. Nissen and another. From a judgment for plaintiff, defendants appeal. Reversed as to defendant named and affirmed as to the other defendant.

A parent is not liable for the torts of his minor son, in absence of a showing of approval thereof by him, or that the son was his agent.

Manly Hendren & Womble and Watson, Buxton & Watson, all of Winston-Salem, for appellants.

Jones & Patterson, A. E. Holton, and H. O. Sapp, all of Winston-Salem, for appellee.

CLARK C.J.

On Sunday afternoon, April 23, 1911, the plaintiff's son, a young man of 19, took three of his young friends to ride in his father's automobile, from his home in Waughtown in the direction of High Point. On his return, about 5 miles from Waughtown, he passed the machine owned by the defendant C. F. Nissen, which was driven by his son, the other defendant, Carl Nissen, a young man of about 20, who also had taken three of his young friends out to ride that afternoon. The latter machine was standing still with its head pointed towards Kernersville, in the opposite direction from that in which the plaintiff's machine was going. Whether by invitation or not is in doubt, but soon afterwards Carl Nissen, turned his machine around and started after the plaintiff's machine. At that time the plaintiff's machine was going about 25 miles an hour. As soon as the defendants' machine started to follow, a race began, in which both machines proceeded at the rate of 40 miles or more. After racing some 3 miles the driver of the foremost machine, Stokes Linville, perceived that the other machine was about to overtake him and turned his machine to the right. The road was in good condition; 10 feet in the center being macadam, and 10 feet on each side being sand clay road. Stokes Linville's evidence is that his machine went entirely off upon the dirt road to the right. The evidence for the other side is that it was partly on the dirt road and partly on the macadam. However that may be, there was room for the defendants' machine to pass, and for a short while they ran side by side; but as the defendants' machine was forging ahead its right hind wheel struck the left fore wheel of the plaintiff's machine, smashing it and throwing the latter machine upside down, injuring its occupants somewhat and damaging the machine. This action is against C. F. Nissen, the owner of the machine, who was not present, and Carl Nissen, the driver, for the injury to the plaintiff's machine.

The plaintiff's machine was a 1,500-pound Ford, and the defendants' was a 3,500-pound Cadillac, and capable of greater speed than the other. There was conflicting evidence as to how the injury occurred. The plaintiff contended that it was caused entirely by the negligence of Carl Nissen, the driver of the defendants' machine, and the defendants contended that it was caused by the negligence of the plaintiff, whose machine, they allege swerved to the left as the defendants' machine was passing. This was a question of fact for the jury, who found that the defendant Carl Nissen was negligent, and that the driver of the plaintiff's machine did not contribute to the negligence. There was evidence that the occupants of the rear car were drinking; 18 empty beer bottles being found therein. This and the fact that the race was begun by defendants' car, which ran into the other, doubtless had weight with the jury.

Both parties were in violation of Laws 1907, c. 728, which makes it a misdemeanor for any person to exceed 15 miles an hour with an automobile on the roads of Forsyth county, and of the general law of the state (Laws 1909, c. 445, § 9), which makes it a misdemeanor to operate an automobile at a greater speed than 25 miles an hour outside the towns and villages, and with slower speed allowed within municipal limits. A strict enforcement of this law would prevent such dangerous occurrences as this.

It is to be presumed that the public prosecutor has done his duty, and that both these young men have answered for their violation of law at the bar of the criminal court. The public are entitled to this protection.

There were exceptions to evidence, but they do not merit serious consideration. There is no ground to consider seriously the exceptions as to Carl Nissen, whose negligence was a matter of fact to be determined by the jury, nor as to the measure of damages, which was fairly presented to the jury by the charge of the court, and were assessed by the jury at $225.

The real controversy in the case is as to the liability of Charles F. Nissen, the owner of the machine, who was not present. He and his son both testified that his son took out the machine that Sunday afternoon not only without the consent of his father, but against his positive prohibition. There was evidence that C. F. Nissen had bought the machine for the use of himself and his family, and also for the collection of bills incident to his business, and that Carl at different times had acted as chauffeur, sometimes with his father and sometimes when his father was not present. There was also evidence offered to show the recklessness of Carl Nissen, in that while driving the machine he had injured two buggies, and that his father had paid the damages. This was competent as tending to show that he was reckless and a careless driver, and that his father knew it. It was in evidence that when he had another machine the father on one occasion had taken off a wheel to keep Carl from using it, and that, though he had forbidden his son to use this machine, he had not locked up the garage, on which there was no lock. It was argued, therefore, that as the son as a member of the family, had an implied authority to use the machine, and that if forbidden to use the machine his father, being aware of his reckless and negligent driving, was himself negligent in not locking it up to prevent his son taking it out, and hence was responsible for the consequent injury which occurred.

The principles of law involved are important, and should be clearly stated. They may be thus summed up upon the authorities:

(1) The owner of an automobile is not liable for personal injuries caused by it merely because of his ownership. "It is not per se a dangerous machine, requiring it to be placed in the same category with the locomotive, ferocious animals, dynamite, and other dangerous contrivances and agencies. The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles. It is well known that they are being devoted to and used for the purposes of traffic, and as conveyances for the pleasure and convenience of all classes of persons, and without menace to the safety of those using them or to others upon the same highway, when they are operated with reasonable care. The defendant cannot therefore be held liable upon the ground that the automobile is a dangerous contrivance." Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227, which further states that this principle has been adopted in Slater v. Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L. R. A. (N. S.) 598; McIntyre v. Orner, 166 Ind. 57, 76 N.E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087; Lewis v. Amorous, 3 Ga.App. 50, 59 S.E. 338; Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915; Cunningham v. Castle, 127 A.D. 580, 111 N.Y.S. 1057. There are many other cases to the same effect. Among them Vincent v. Crandall, 131 A.D. 200, 115 N.Y.S. 600; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Freibaum v. Brady, 143 A.D. 220, 128 N.Y.S. 121.

(2) A parent is not liable for the torts of his minor son. "The relationship does not alone make a father answerable for the wrongful acts of his minor child. There must be something besides relationship to connect him with such acts before he becomes liable. It must be shown that he has approved such acts, or that the child was his servant or agent." Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933, 74 Am. St. Rep. 795, which cites a large number of cases. This is quoted and approved in Brittingham v. Stadiem, 151 N.C. 300, 66 S.E. 129; this court adding: "Wherever the principles of the common law prevail, this is a well established doctrine."

We would not be understood, however, as holding that the father would not be liable if he should place his automobile in charge of a child of tender years, any more than if he would intrust an unruly horse to him. But in such case the liability arises from the father's negligence, and not from the imputed negligence of the child. This is too well settled to need discussion. It is however, contended that in this case the son was acting by the authority of the father and therefore quasi his servant. Aside from the fact that the evidence of both the father and son is that he took the automobile out not only without his father's consent, but against his prohibition, the reason of the thing cannot sustain the proposition that the son was pro hac vice acting as his father's agent. He did not take any of the family out to ride, but some of his friends, and was acting for his own purposes, and not as agent for his father. In Way v. Powers, 57 Vt. 135, a son, who was living as a hired man on his father's farm, took his horse without his permission, though he would have given permission, if asked, and drove to the railroad station for one of his friends. He there tied the...