McGowan v. Longwood

• Decision Date: 01 July 1922
• Citation: 136 N.E. 72,242 Mass. 337
• Parties: McGOWAN v. LONGWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 337

136 N.E. 72

McGOWAN

v.LONGWOOD.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Exceptions from Superior Court, Suffolk County; J. F. Quinn, Judge.

Action by James McGowan, p. p. a., against William R. Longwood for personal injuries sustained when struck by an automobile owned by defendant and driven by his son.Verdict for plaintiff, and defendant brings exceptions.Exceptions sustained.

Defendant excepted to the instructions given, to the refusal of requested instructions and to the denial of a directed verdict.The bill of exceptions raised no question as to the negligence of the operator of the automobile or plaintiff's due care.The theory on which the case was submitted to the jury is indicated by the following quotation from the charge:

‘Where a parent purchases an automobile for the use of his family, [and] a child, a member of that family, using it for the purpose the automobile was contemplated to be used and bought to be used for, in using it inflicts injury on another through his, the son's negligence, that negligence may be chargeable to the father who owned the vehicle.It is within the scope of a father's business, or it may be, to furnish members of his family with an automobile for family use.* * * It appears in evidence * * * that the automobile was bought * * * for the use of the members at home of his family and that it was not utilized for any other purpose; and it is for you to determine whether or not upon all the evidence that was the business it was obtained or (for?), the pleasure and recreation and convenience of every member of his family who lived with him at home.’

1.Negligence k22-Automobile not dangerous instrumentality.

An automobile is not an instrumentality inherently dangerous as respects the liability of a father for the negligence of his son in driving it.

2.Parent and child k13(1)-Father not liable for torts of son living at home.

A father is not responsible for his son's tortious acts in operating an automobile, though he was living at home.

3.Master and servant k301(1)-Son not father's agent in driving family automobile.

That an automobile was purchased for the customary conveyance of the family does not make a son driving the automobile for his own personal benefit and enjoyment the servant or agent of his father so as to render his father liable for his negligence.

E. H. Savary, of Boston, for plaintiff.

James H. Vahey, Robert J. Crowley, and Philip Mansfield, all of Boston, for defendant.

BRALEY, J.

The plaintiff while in the exercise of due care walking on a public way in the city of Boston was struck and injured by an automobile owned and registered in the name of the defendant, but negligently driven by the defendant's son Theodore, a minor and duly licensed operator.The question for decision is whether the defendant is responsible for his son's negligence.The jury would have been warranted in finding, that the defendant bought the car for use as a ‘family car,’ and that on the day in question the son, who lived at home, without his father's knowledge obtained the keys to the garage, which were kept in the house, and with a companion, one Hatch, took out the car for a pleasure ride.They finally went to the ‘army base,’ where Hatch bought some goods which were being taken to his home when the accident happened.While no express permission had been given Theodore to use the car whenever he desired, it did not conclusively appear that either he or his brother, who also was a member of the family holding an operator's license, had been forbidden its use unless the defendant's consent was first obtained.It is manifest that the car was not being used in any service required by the needs of the family, but for his own personal benefit and enjoyment.

[1][2]The defendant's automobile was not an instrumentality inherently dangerous; and it would be a departure from the rule of the common law to hold him responsible for his son's tortious acts, even though he was living at home.Homer v. Thwing, 3 Pick. 492, 493;Moon v. Towers, 8 C. B. (N. S.) 611;Gould v. Elder, 219 Mass. 396, 107 N. E. 59.

[3]The plaintiff, however, contends that it could properly be found that the son was acting as his father's servant or agent in a designated employment.The doctrine on which he relies to bring the case at bar within the general rule, that the master is liable for a servant's tortious acts, and a principal for the wrongs inflicted by his agent, while the servant or agent is acting within the scope of the authority conferred, is formulated in Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020,50 L. R. A. (N. S.) 59, in these words:

‘It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance 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 the 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.* * * We think that, both on reason and authority, the daughter in the present instance should be held the agent of her parents.’

The courts of last resort of several states seem in kindred cases to be in accord with this view.We refer only to Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994;Stowe v. Morris, 147 Ky. 386, 144 S. W. 52,39 L. R. A. (N. S.) 224;Kayser v. Van Ness, 125 Minn. 277, 146 N. W. 1091,51 L. R. A. (N. S.) 970;Lewis v. Steele, 52 Mont. 300, 157 Pac. 575;Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487, andKing v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293.It was also adopted in Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631.But in Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296,19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677, the court say, that such an application of the law--

‘makes the defendant's liability to depend upon the object for which he purchased the machine, which was for the pleasure of the...