Miller v. Kraft

• Decision Date: 19 January 1929
• Docket Number: No. 5232.,5232.
• Citation: 57 N.D. 559,223 N.W. 190
• Parties: MILLER v. KRAFT et al.
• Court: North Dakota Supreme Court

57 N.D. 559

223 N.W. 190

MILLER

v.KRAFT et al.

No. 5232.

Supreme Court of North Dakota.

Jan. 19, 1929.

Syllabus by the Court.

Under section 4439, Comp. Laws 1913, “neither parent nor child is answerable as such for the act of the other,” and in an action against a father for an injury caused by the negligence of the son in driving the father's automobile the father can be held liable only upon the theory that the son was using the automobile in his father's business as his agent.

The head of a family may purchase an automobile for the general use of the members of his family; but, if he denies such use to a member of the family, he is not liable if such member surreptitiously takes the car and negligently injures another.

Evidence in the instant case examined, and for reasons stated in the opinion a new trial is ordered.

Appeal from District Court, McHenry County; C. W. Buttz, Judge.

Action by Lambert Miller against A. Kraft and another. Judgment for plaintiff, and defendant named appeals. Reversed and remanded for a new trial.John J. Coyle, of Minot, and Albert Weber, of Towner, for appellant.

E. R. Sinkler and G. O. Brekke, both of Minot, for respondent.

BURKE, C. J.

This is an action for damages for injury in an automobile accident. There was a verdict for the plaintiff, and from a judgment thereon the defendant appeals. At the close of plaintiff's testimony the defendant moved for a dismissal of the action against A. Kraft, upon the ground that the testimony showed that the automobile at the time of the accident was driven by the defendant Sebastian Kraft, without knowledge of A. Kraft and against his expressed commands. At the close of all the testimony the motion was renewed, and, being denied, the defendant then moved the court to direct a verdict for both defendants, upon the ground that the evidence showed contributory negligence on the part of the plaintiff, which motion was overruled. After the verdict there was a motion for judgment notwithstanding the verdict, which was denied.

The defendant's first contention is that the evidence is insufficient to justify any verdict against A. Kraft. It appears from the evidence that the defendant A. Kraft is the owner of a Buick automobile; that at noon on the 17th day of November, 1924, the said A. Kraft drove from his home in the village of Karlsruhe to his store in said village, and left his automobile on the south side of the store building, where it was to remain until he drove it home when his day's work was done; that the said automobile remained on the south side of said store building until some time between 9 and 10 o'clock in the evening of said day; that along about that time the defendant Sebastian Kraft, son of A. Kraft, went to the automobile, and, being unable to start it, called to his assistance three boys, two of whom were brothers of the plaintiff, and they started the engine by pushing the car, Sebastian Kraft holding the steering wheel. When the engine started, two of the boys got in the back seat, the other got in the front seat with the defendant Sebastian Kraft, and drove three blocks north, and one-half mile east, then turned round, came back west on the same route, turning south, and driving down the street on the right-hand side.

The street is 66 feet wide, and across the street and a little to the south from defendant's store is a hardware store. In front of this store and on the right side of the street, was a Ford coupé headed south, upon which the owner and the hardware merchant were making some repairs. There were no lights on the coupé, either in front or behind, but they were using a lantern on the front part of the car, where they were working. Both doors of the coupé were open, and the plaintiff testified: “I walked up to where the car was being repaired. I did not know the owner of the car. Nobody asked me to help. I just came and looked on, and he told me to go around and look to see if the generator was charging, and I went around on that side (the east side) and got hurt.” On cross-examinationhe states: “I don't know if it was necessary, but I was standing on that side, and it was the closest way to get there.” “I went around there probably about five or ten minutes. Mr. Grimm was working on the front end of the car. He was standing, leaning over the fender, with the hood up, and was on the west side of the car. I didn't know whether the lights were switched on or not. I was leaning in the front seat on the east side, but standing on the ground, my hips and legs outside the car. I had the door of the car open; while I was in that position I got struck by another car, and after the other car went by I was on the ground about the center of the street. It was a dark night; there was no moon.”

The testimony of Sebastian and A. Kraft in reference to the automobile being at the south side of the defendant's store is not disputed, and is corroborated by the testimony of Joe Miller, brother of the plaintiff, who says: “He called us up there to help him start the car, and he told us he would give us a ride; so we jumped in the car and went about half a mile, or three-quarters of a mile, and came back.”

The plaintiff claims that the defendant, with others, came to see him in the hospital, and while there the defendant told the plaintiff that he let the boy have the car that night to take them home. The defendant and witness Black, who was with him at the time, testified that there was no such conversation, and no such statement was made by the defendant, and both defendants testified that the boy wanted the automobile that night, and the father refused him, but the boy took it without his consent or knowledge and against his command to leave the car alone.

It is also undisputed that about 9 o'clock in the evening of the day of the accident the boy asked his father for the automobile to take a ride and was emphatically refused; that when his father was working on the books in the back end of the store he went out, and with the help of others took the car without the knowledge of his father and against his command to leave the car alone; that Karlsruhe is an unincorporated village with no street lights; that the automobile had but one light; that a bolt was broken, which affected the steering gear; the self-starter was not operating; that on the return trip the defendant Sebastian Kraft was watching the front of the store as they passed, hoping, as Sebastian testified, to get the automobile back before his father found out that he had taken it; that none of the boys in the car saw the coupé, as all were watching the front of defendant's store; the testimony of A. Kraft that one reason why he would not let the boy have the car for a ride was on account of its being out of repair; that immediately after the accident A. Kraft appeared on the scene, and, as Sebastian Kraft testified, “he bawled me out for taking the car.”

That A. Kraft refused to let the boy have the car when it was so badly out of repair is reasonable; that he let the boy have the car, and immediately after the accident “bawled him out for taking it, is highly improbable, while the fact that all the boys in the car were watching the front end of A. Kraft's store is a circumstance indicating that the car had been taken without permission, and they were trying to get it back before A. Kraft closed the store. Then there is the physical fact that A. Kraft drove the car and parked it at the store. It was not necessary to send the boy for it, or to let the boy have it to bring him home; it was already there; besides, the boy could not start the car, and his father could. Against all of this testimony there is the testimony of the plaintiff that, when A. Kraft was at the hospital, he told him that he let the boy have the car that night to bring him home, and upon this statement and the family car doctrine” the plaintiff's right to recover as against A. Kraft rests.

[1] Under section 4439, C. L. 1913, “neither parent nor child is answerable as such for the act of the other,” and to hold the father liable for the act of the son it must appear from the evidence that the son was using the car in his father's business as the agent or the servant of the father. “The liability of the owner of a motor vehicle for damages caused by the...