Mcneal v. Mckain

• Decision Date: 11 September 1912
• Docket Number: Case Number: 1868
• Citation: 126 P. 742,33 Okla. 449,1912 OK 571
• Parties: McNEAL v. McKAIN.
• Court: Oklahoma Supreme Court

1912 OK 571

126 P. 742

33 Okla. 449

McNEAL v. McKAIN.

Case Number: 1868

Supreme Court of Oklahoma

Decided: September 11, 1912

Syllabus

¶0 PARENT AND CHILD--Negligence of Child--Liability of Parent. A father bought an automobile for the pleasure and comfort of himself and family; his minor son, who was a member of his family, being authorized to use it at any time for such purpose. The son in taking it out for the pleasure of himself and sister, with a friend, who was a guest of the father's family, was a servant or agent of the father ill taking his sister and the guest of the family driving therein, and was not performing a service independent of his father, but the business of his father, making the father liable for his negligence in driving it.

Horace Speed and Devereux & Hildreth, for plaintiff in error.

F. H. McGuire and C. G. Hornor, for defendant in error.

WILLIAMS, J.

¶1 This proceeding in error is to review the judgment of the lower court, wherein the defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover damages for personal injuries sustained on account of a collision with an automobile belonging to said defendant. On the theory of the plaintiff's evidence, the injuries were occasioned through the negligent handling of defendant's automobile by his son Paul, who was then a minor and living with his father, the defendant; and Paul operated said machine with the consent of the defendant, and, when the accident happened, he was driving with a guest of his (defendant's) house, with his (defendant's) daughter. The court instructed the jury in part as follows:

"You are instructed that neither parent nor child is answerable, as such, for the act of the other. And the defendant in this case cannot be held liable for any act of negligence on the part of his son Paul merely because of such relationship. If you find that the injuries complained of in this case were not caused by any negligence of the plaintiff contributing thereto, but were caused by the negligence of Paul McNeal while he was engaged in business or pleasure of his own and was not acting as the servant of the defendant nor for him nor in the prosecution of the defendant's business, the said Paul would be liable for the injuries sustained by plaintiff, but the defendant would not, and your verdict should be for the defendant. The business of a person in this connection is not necessarily limited to financial matters nor the making of a living, but may include his pleasures, his interests, and duties other than financial, and anything which he directly or indirectly directs to be done."

¶2 This instruction is not challenged by any specification of error. Section 4914, Comp. Laws 1009, provides that "neither parent nor child is answerable, as such, for the act of the other." This statute seems to be declaratory of the common-law rule. At common law no such relation exists between father and son, though the son be living with his father as a member of his family, as will make the tortious acts of the son more binding upon the father than the acts of any other person. The father is not liable for the contracts of the son, within age, except they be for necessaries, and it would be a departure from the common law as a rule to hold him responsible for the son's trespass and wrongs. Moore v. Powers, 8 C. B., N. S., 611; Tifft v. Tifft, 4 Denio (N.Y.) 175; Baker v. Haldeman, 24 Mo. 219, 69 Am. Dec. 430; Paul v. Hummel, 43 Mo. 119, 97 Am. Dec. 381. The rule as to the liability of the parent for the tort of the child at civil law is different from that at common law. Marionneaux v. Brugier, 35 La. Ann. 13; Hagerty v. Powers, 66 Cal. 368, 5 P. 622, 56 Am. Rep. 101. Pothier, in his work on Obligations (volume 2, p. 34), says:

"The doctrine that fathers and others shall be responsible for the acts of children under their care, which it was in their power to prevent, appears highly reasonable; but I am not aware of any cause in which it is adopted in the English law."

¶3 At common law a minor is liable at any age for a tort, when committed with force, to be proceeded against as an adult. Jennings v. Randall, 8 T. R. 335; Loop v. Loop, 1 Vt. 177; Bullock v. Babcock, 3 Wend. (N.Y.) 391. See, also, International Land Co. v. Marshall, 22 Okla. 693, 98 P. 951, 19 L.R.A. (N.S.) 1056. The plaintiff claims to be entitled to recover, not on the ground of the parental and filial relation, but because the son, Paul, in the operation of the defendant's machine, was his servant and engaged in his business, and the defendant was liable for his negligence. The master is liable to third persons for all damages resulting from the negligence of his servants, acting under his orders, or in the course of his business. Specific directions are not required. It is sufficient if the act was one within the range of the servant's employment. The general rule, as judicially declared in England and America, is that the master is answerable for every wrong of his servant committed in the course of the service and for the master's benefit, though no express command or privity of the master be proven. Mitchell v. Crassweller, 76 E.C.L. 236; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336. In Lashbrook v. Patton, I Duv. (Ky.) 317, it is said:

"Appellant's minor son, whilst driving his two sisters to a 'picnic,' in his father's carriage, drawn by his father's horses, and with his father's approbation, all being members of his father's family, through negligence, ran against appellee's carriage, causing his horse to frighten and run, turn over and break his carriage, and throw out his daughter. * * * The son must be regarded as in the father's employment, discharging a duty usually performed by a slave, and therefore must, for the purposes of this suit, be regarded as his father's servant. The doctrine that masters are responsible for the injuries arising from the carelessness of their servants whilst in the master's employment and the discharge of their duties has been so long recognized and acted on that we scarcely deem it necessary to elaborate the reasons or recite authorities." See, also, Bard v. Yohn, 26 Pa. 482; Howe v. Newmarch, 12 Allen (Mass.) 49; Herlihy v. Smith, 116 Mass. 265; Mirick v. Suchy, 74 Kan. 715, 87 P. 1141 [11 Ann. Cas. 366]; Smith v. Davenport, 45 Kan. 423 [25 P. 851, 11 L.R.A. 429, 23 Am. St. Rep. 737]; Sheridan v. Chadwick, 4 Daly 338.

¶4 In 1 Shear. & R. Neg. (5th Ed.) sec. 147, the rule is laid down as follows:

"In determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act is done while the servant is at liberty from service, and pursuing his own ends exclusively, there can be no question of the master's freedom from all responsibility, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to the master." See, also, Sheridan v. Chadwick, supra; Cavanagh v. Dinsmore, 12 Hun 465; Bard v. Yohn, supra; Joel v. Morison, 6 Car. & P. 501. An automobile is not per se a dangerous agency. Lewis v. Amorous, 3 Ga. App. 50, 59 S.E. 338; Shinkle v. McCullough, 116 Ky. 960, 77 S.W. 196, 25 Ky. Law Rep. 1143, 105 Am. St. Rep. 249; Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035, 1 L.R.A. (N.S.) 215, 108 Am. St. Rep. 196, 3 Ann. Cas. 487; Chicago v. Banker, 112 Ill. App. 94; 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; Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N.E. 615, I L.R.A. (N.S.) 238, 6 Ann. Cas. 656; Smith v. Jordan, 211 Mass. 269, 97 N.E. 761; Hartley v. Miller et al., 165 Mich. 115, 130 N.W. 336, 33 L.R.A. (N.S.) 81; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133; Daily v. Maxwell, 152 Mo. App. 415, 133 S.W. 355; Hall v. Compton, 130 Mo. App. 675, 108 S.W. 1122; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. 670; Vincent v. Crandall, 131 A.D. 200, 115 N.Y.S. 600; Knight v. Lanier, 69 A.D. 454, 74 N.Y.S. 999; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A. (N.S.) 382, 19 Ann. Cas. 1227; Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L.R.A. (N.S.) 216, 125 Am. St. Rep. 915.

¶5 So the rules that apply at common law as to the servant in charge of vehicles belonging to the master are applicable to chauffeurs or persons in charge of motor cars of the master. Vehicles and motor cars may be used, not only for the business of the master for profit, but also in his business for pleasure. If Paul, the minor son of the plaintiff in error, had been driving his father's carriage (whilst he was a member of his family) in which were contained his sister and a guest of his father's house, the same being done by him with the express or implied consent of his father, the relation of master and servant would exist, and the father would be liable for the negligent acts of the minor son whilst engaged in the driving of the carriage, arid the same rule is Supported by authority as to motor cars. Stowe v. Morris, 147 Ky. 386, 144 S.W. 52; Smith v. Jordan, 211 Mass. 269, 97 N.E. 761; Moon v. Matthews, 227 Pa. 488, 76 A. 219, 29 L.R.A. (N.S.) 856, 136 Am. St. Rep. 902. In the following cases the relation of master and servant as: between father and son was held not to exist' Reynolds v. Buck, 127 Iowa 601, 103 N.W. 946; Doran v. Thomsen, 74 N.J.L. 445, 66 A. 897; Cunningham v. Castle, 127 A.D. 580, 111 N.Y.S. 1057; Maher v....