Miller v. Stevens
| Decision Date | 30 July 1934 |
| Docket Number | 7589. |
| Citation | 256 N.W. 152,63 S.D. 10 |
| Parties | MILLER v. STEVENS et al. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.
Action by Helen Miller against Richard Stevens and R. G. Stevens. From a judgment in favor of plaintiff and from an order denying their applications for new trial, defendants appeal.
Reversed and remanded, with directions.
See also (S. D.) 253 N.W. 449.
Bailey & Voorhees and M. T. Woods, all of Sioux Falls, for appellants.
Tom Kirby, of Sioux Falls, for respondent.
In 1930 R. G. Stevens resided in Sioux Falls, S. D., and was the owner of an automobile. His son Richard (aged 18) was a student in the University of South Dakota, at Vermillion. His attendance there was pursuant to his father's wish and at his father's expense. Helen Miller (aged 20) was also a resident of Sioux Falls and a student at the same school. On Sunday, November 9, 1930, both Richard and Helen (having been at their respective homes over the weekend) were desirous of returning to Vermillion. Richard (with his father's permission and consent) was intending to use his father's automobile for the purpose of driving back to school and invited Helen to accompany him, which invitation she accepted. Helen did not pay or agree to pay any compensation for the trip, and concededly her status was that of a mere guest. Both Helen and Richard were undertaking the journey with the object and purpose of getting back to the University to take up their respective scholastic duties. They left Sioux Falls about 4 o'clock Sunday afternoon in the R. G Stevens automobile, driven by Richard, proceeding upon a through highway toward Vermillion. About an hour out of Sioux Falls an automobile driven by one Johnson, approaching upon a side road, failed to heed the stop sign before entering the through highway, and the two automobiles collided in the intersection, inflicting personal injuries upon both Helen and Richard. Helen thereafter instituted the present action against R. G. Stevens and Richard Stevens, seeking damages in the sum of $25,000.
The answer of the defendants denied any negligence, and further pleaded that the injury to plaintiff was caused solely by the negligence of Johnson; that if Richard Stevens was in any degree negligent plaintiff was contributorily negligent; and further, that plaintiff had previously settled with Johnson for her damages by receiving from him the sum of $1,250, whereby she had been fully compensated.
On the issues thus joined the case was tried to a jury. At the conclusion of all the testimony defendants moved separately for directed verdict, which motions were denied. The jury found in favor of plaintiff and against both defendants, assessing plaintiff's damage at $10,000. Defendants moved separately for judgment n. o. v., which motions were denied. Their applications for new trial were likewise denied, and judgment was entered pursuant to the jury's verdict, from which judgment and from the order denying their applications for new trial defendants have now appealed.
We will examine first the question of the liability of appellant R. G. Stevens. He had extended no invitation to respondent, was not operating or in control of the automobile at the time of the accident, and indeed was not even present. The only allegations of the pleadings and the only facts established by the proof from which liability of R. G. Stevens (assuming liability on the part of Richard) could by any possibility be argued are these: The car was being operated at the time of the accident by his minor son. He had consented that his son might use the car and might make the particular trip therein. The son's object in making the trip was to resume his attendance at the State University. The father desired the son to have an education, desired him to attend this particular school, and bore the expense of his so doing.
Of course the relationship of parent and child, standing alone, does not render the father liable for the torts of his minor son. Section 199, Rev. Code 1919; Johnson v. Glidden (1898) 11 S.D. 237, 76 N.W. 933, 74 Am. St. Rep. 795; Fanton v. Byrum (1910) 26 S.D. 366, 128 N.W. 325, 34 L. R. A. (N. S.) 501, 1 N. C. C. A. 812. Liability cannot be predicated on the mere fact that the father furnished an automobile for the use, pleasure, and convenience of his son and other members of the family; the "family purpose doctrine" having been definitely rejected by this court. Behseleck v. Andrus (1932) 60 S.D. 204, 244 N.W. 268, 88 A. L. R. 596. Obviously the fact that the father desired the son to have an education or even that he desired him to attend this particular school and that he, the father, paid the expense thereof does not render the education of the son a purpose of the father in any such sense or to any such extent that the son, in pursuing his education or in journeying to Vermillion to attend upon sessions of the school, was engaged in the business of the father or acting in the father's behalf so as to justify the application of the rule of "respondeat superior" or any analogous principle. Cf. Kunkle v. Thompson (1917) 67 Pa. Super. Ct. 37. That the education of the son was not in the eyes of the law a partnership enterprise or joint adventure of himself and his father is too apparent to justify either discussion or citation of authority. Respondent does not suggest, and we are unable to discover, any valid legal theory which could sanction recovery by respondent against appellant R. G. Stevens on this record. To deny his motions for directed verdict and for judgment n. o. v. was manifest error.
We turn now to the matter of the propriety of the judgment as against appellant Richard Stevens. Some thirty-three assignments of error are argued in the brief, and we will examine first the assignments that the court erred in denying Richard's motion for directed verdict at the close of all the testimony and in subsequently denying his motion for judgment n. o. v., and in this connection it becomes necessary to determine relevant facts as shown by the record and law applicable thereto.
At the trial respondent called Richard Stevens as an adverse witness under the statute, and his version of the matter was substantially this: That he had been traveling on a main traveled through highway (paved at the place of the accident) with stop signs on both sides at intersections at about the same rate of speed all the way from Sioux Falls. That he was driving south on the right-hand or westerly side of the pavement, and when he was a couple of blocks north of the intersection observed the Johnson car approaching from the west on the side road and expected that it would stop. The side road on which Johnson was approaching was a graveled road, and it is conceded that there was a stop sign thereon about 40 feet west of the edge of the paving on the through highway, and that it was Johnson's duty, under the law of this state, to bring his car to a full stop before entering the intersection of the graveled side road and the paved through highway. Richard says that when he was about 100 feet north of the intersection it began to look as though Johnson was not going to stop and he (Richard) was afraid there was going to be trouble. In trying to avoid collision he swerved over to the east side of the paving and stepped on the gas to speed up his car in an effort to get through the intersection ahead of the Johnson car. He says that he was in the southeast corner of the intersection with the left wheels of his car out on the graveled shoulder at the edge of the paving when the front end of the Johnson car (which had continued to advance without stopping and had swung a little to the south) hit the back end of the Stevens car on the right-hand side just about at the right rear fender.
After the testimony of Richard Stevens respondent called the man Johnson. It appears from the record in this case that before instituting the present action respondent had sued Johnson to recover damages for this same accident, which litigation was still pending at the time of the trial of the present case. Johnson testified, in substance, that he approached the intersection from the west, driving very slowly, and brought his car to a complete stop with the front end projecting about 3 feet on to the paving, the paving being 20 feet in width; that after the Johnson car was completely stopped in this location Richard Stevens, driving south on the pavement at a speed of at least 70 miles an hour, notwithstanding the fact that he had 17 feet of paving in which to get around the Johnson car, crashed into it. Johnson admits that after the accident both cars were in the ditch south and east of the intersection.
Thereafter respondent herself testified. She flatly contradicted the testimony of her witness Johnson and gave a version of the facts which in all essential details absolutely corroborated the story of appellant Richard Stevens. Her testimony relative to the facts and circumstances surrounding the collision is fairly epitomized as follows:
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