Michaelsohn v. Smith

• Decision Date: 15 February 1962
• Docket Number: No. 7932,7932
• Parties: W. E. MICHAELSOHN and Austin D. Michaelsohn, by his next friend, W. E. Michaelsohn, Plaintiffs, W. E. Michaelsohn, Plaintiff and Respondent, v. Basil Wayne SMITH, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 571

113 N.W.2d 571

8 A.L.R.3d 1183

W. E. MICHAELSOHN and Austin D. Michaelsohn, by his next friend, W. E. Michaelsohn, Plaintiffs, W. E Michaelsohn, Plaintiff and Respondent, v. Basil Wayne SMITH, Defendant and Appellant.

No. 7932.

Supreme Court of North Dakota.

Feb. 15, 1962.

Syllabus by the Court

1. Where a member of a family incurs liability for negligence in the operation of a family automobile for a family purpose with the consent of the owner, the family purpose doctrine, in the interest of public policy, also imposes the liability upon the owner of the automobile.

2. Family purpose doctrine has no application to a case where the owner of a family automobile seeks to recover for injuries proximately caused by the negligence of the operator of another automobile, even though the family member driver of the owner's automobile was also negligent.

3. Where the operators of two automobiles, who were involved in a collision, were aware of the icy conditions of the streets it was the duty of each to drive at a speed that was safe under the prevailing road conditions and defendant's request for an instruction to the jury that, if they found that the driver of plaintiff's automobile could have stopped and avoided the collision, had the road been dry, they should also find that the ice and snow on the road was the proximate cause of the collision, was properly refused.

Nilles, Oehlert & Nilles, Fargo, for appellant.

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

BURKE, Judge.

In this action plaintiff, W. E. Michaelsohn, sued in his own behalf, and as next friend, in behalf of his minor son, Austin D. Michaelsohn, for damages which he alleged were proximately caused by the negligence of the defendant, Smith. The defendant answered, denying any negligence on his part, alleging contributory negligence on the part of Austin Michaelsohn, and counterclaiming for damages which he alleged were proximately caused by the negligence of Austin Michaelsohn. At the trial of the case the jury awarded a verdict to W. E. Michaelsohn for damages to his automobile, and dismissed both the claim of Austin Michaelsohn and the counterclaim of the defendant. Judgment was entered in accordance with the verdict and defendant has appealed from the judgment.

Appellant's first specification of error is that the trial court erred in denying defendant's motion for a directed verdict upon the ground that the evidence established contributory negligence on the part of Austin D. Michaelsohn, as a matter of law, and that such negligence was legally imputable to his father, W. E. Michaelsohn.

It appears from the record that an automobile owned by W. E. Michaelsohn and operated by his son, Austin, collided with an automobile, owned and operated by the defendant at the intersection of 9th St. and 13th Ave. N. in Fargo, Austin Michaelsohn was returning home from visiting a fellow student at North Dakota State University, with whom he had been working on a school project. His father, W. E. Michaelsohn was not in the car. The defendant was returning home from visiting with his sister and brother-in-law. As a result of the collision both cars were damaged and Austin Michaelsohn received minor physical injuries.

In his brief on this appeal, the defendant concedes his own negligence but he asserts that the evidence also conclusively establishes contributory negligence on the part of Austin Michaelsohn. Since, however, the jury dismissed Austin Michaelsohn's claim, and found only in favor of W. E. Michaelsohn, the contributory or concurrent negligence of Austin Michaelsohn is of no materiality unless such negligence be imputable to his father, W. E. Michaelsohn, under the family purpose rule or doctrine. Where the concurring negligent acts of two parties are the proximate cause of injury, each delinquent is responsible for the result. Stockfeld v. Sayre, 69 N.D. 42, 283 N.W. 788.

The issue is whether the 'Family Purpose Doctrine', as applied to automobiles, will prevent a father from recovering for damages to his automobile when such damages were proximately caused by the concurrent negligence of the driver of another automobile and the negligence of the family member driver of the father's automobile. The 'Family Purpose Doctrine' was first adopted in this state in the case of Ulman v Lindeman, 44 N.D. 36, 176 N.W. 25, 10 A.L.R. 1440, with Judges Birdzell and Christianson dissenting. The decision of the majority was founded upon the theory that the driver of a family car, in pursuit of recreation or pleasure, was engaged in the owner's business and that therefore the doctrine of respondeat superior applied, because the driver was either the agent or servant of the owner. In Carpenter v. Dunnell, 61 N.D. 263, 237 N.W. 779, the liability of the car owner for the negligence of a member of his family was predicated upon a master and servant relationship. In Bryan v. Schatz, 77 N.D. 9, 39 N.W.2d 435, this court concluded that rule of liability was established in this court and made no attempt to state the basis of the rule.

If it be considered reasonable to augment the meaning of the word 'business', as originally used in applying the rule of 'respondeat superior' in cases involving master and servant and principal and agent, to include the furnishing of an automobile for convenience, recreation and pleasure of all of the members of a family individually, and thus to hold that a son driving the family car for his own pleasure or recreation is engaged in his parent's business, it would seem to follow, that the son's negligence in driving the car, whether such negligence was primary, concurrent or contributory, should be imputed to the parent.

In about one half of the states, however, the family purpose doctrine has been rejected. Blashfield, Cyc. of Automobile Law and Practice Sec. 3120, p. 74, n. 81. The reasons for rejecting it have been similar to those stated by Judge Birdzell in his dissenting opinion in Ulman v. Lindeman, supra, wherein he stated: (44 N.D. 45, 176 N.W. 28)

'* * * the established legal doctrine of respondeat superior is simply the plausible pretext to justify a result arbitrarily reached. I can see no occasion to stretch settled legal doctrines beyond recognition in order to enforce what might at first blush seem to be a salutary rule of liability.'

Courts that have adopted the rule have recognized that its assimilation into the law of master and servant and principal and agent is a fiction dictated by considerations of public policy. In Turner v. Hall's Administratrix, (Ky) 252 S.W.2d 30 it was said:

'Family Purpose Doctrine is a humanitarian one designed for the protection of the public generally, and resulting from recognition of the fact that in the vast majority of instances an infant has not sufficient property in his own right to indemnify one who may suffer from his negligent act.'

In King v. Smythe, 140 Tenn. 217, 204 S.W. 296, L.R.A.1918F, 293, it was said:

'We think the practical administration of justice...