Mast v. Hirsh

• Decision Date: 18 February 1918
• Parties: GRACE MAST, Respondent, v. LEO HIRSH, Appellant
• Court: Kansas Court of Appeals

202 S.W. 275

199 Mo.App. 1

GRACE MAST, Respondent, v. LEO HIRSH, Appellant

Court of Appeals of Missouri, Kansas City

February 18, 1918

Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.

REVERSED.

Judgment reversed.

Scott J. Miller and Karl Hirsh for appellant.

J. M Davis & Son for respondent.

OPINION

ELLISON, P. J.

Plaintiff's action is for personal injuries occasioned by the alleged negligence of defendant's wife. Defendant owned an automobile which he kept for the use of himself and his wife. On September 26, 1916, his wife was driving the car for pleasure and was accompanied by her mother and sister who were visiting her and defendant. There was evidence tending to prove that she drove the car so carelessly and negligently as to crowd plaintiff and her wagon and team to the side of the road and into a ditch, frightening the team so that they became unmanagable and plaintiff was thrown to the ground and injured. She recovered judgment in the trial court.

Plaintiff disclaims any right to a judgment against defendant on the theory that as husband he is liable for his wife's torts and bases her right to the judgment on the ground that the wife of defendant was his agent and servant in running the car, and having run it negligently, he is liable for her act. The only evidence relied upon to show that she was his agent or servant consisted in the fact that she was his wife and that he kept the car for his and her use; that she drove it for the pleasure of herself and those she took with her, and that he knew she was driving with her relatives that day. There is no pretense that he ordered, directed, or requested her to drive the car that or any other day. A number of authorities cited in the brief for plaintiff support her right to the judgment. [Daily v. Maxwell, 152 Mo.App. 415, 133 S.W. 351.] But since the case was tried, the Supreme Court has disapproved of those cases, and has held that mere permission by the husband or father that his wife or children might use his car for the pleasure of themselves and friends, did not constitute them his agents or servants. [Hays v. Hogan, 273 Mo. 1, 200 S.W. 286.]

Our especial attention has been called by plaintiff to Crawford v. McElhinney, 171 Iowa 606, 154 N.W. 310 and Missell v. Hayes, 86 N.J.L. 348, 91 A. 322. We think neither case is in point on the facts. In the first, the husband owned and kept the automobile for himself and his wife and on the occasion when a child was killed he and she, for their mutual entertainment, had gone to a fair in or near the town where they lived, she driving. The court said that "he was present at the time and permitted his wife to operate the car on the trip. The mere fact that he transacted no business does not argue that he was not engaged with his wife on the trip in question for their mutual pleasure." Again the court said: "The wife may be the agent or employee of her husband. The evidence of defendant is such as to show that at the time in question his wife was in his employ, in the sense that she was engaged in the transaction of his business or the business of both." Nothing of the nature there shown appears in the case under consideration.

In the second case the father kept an automobile for the general use of himself and members of his family. His son used it sometimes with, and sometimes without, his express assent. On the occasion giving rise to the action, his son took out the automobile and had therein his mother and sister, and two others, one a young man, who was his own guest, and the other, a young lady, the guest of his sister. The court held that "it was within the scope of the father's business to furnish his wife and daughter, who were living with him as members of his immediate family, with outdoor recreation just the same as it was his business to furnish them with food and clothing, or to minister to their health in other ways." But, the court added that as there was evidence in the case tending to show that the son invited his mother and sister to take a ride, as his guests, on a trip which he was taking for his own pleasure or business and that they were doing...