Myers v. Shipley

• Decision Date: 25 January 1922
• Docket Number: 111.
• Citation: 116 A. 645,140 Md. 380
• Parties: MYERS et al. v. SHIPLEY.
• Court: Maryland Court of Appeals

116 A. 645

140 Md. 380

MYERS et al. v. SHIPLEY.

No. 111.

Court of Appeals of Maryland

January 25, 1922

Appeal from Circuit Court, Carroll County; Robert Moss, Judge.

Action by Clarence E. Shipley against E. Ray Myers and Howard E Myers. Judgment for the plaintiff, and defendants appeal. Judgment against E. Ray Myers affirmed, and that against Howard E. Myers reversed without a new trial.

Argued before BOYD, C.J., and THOMAS, PATTISON, URNER, ADKINS, and OFFUTT, JJ.

F. Neal Parke, of Westminster (James A. C. Bond and Edward O. Weant both of Westminster, on the brief), for appellants.

Ivan L Hoff and Guy W. Steele, both of Westminster, for appellee.

BOYD C.J.

This is an appeal from a judgment obtained by the appellee against Howard E. Myers, the owner of an automobile, and E. Ray Myers, his adult son, who was driving it when an accident occurred, due to the alleged negligence of the latter. This suit was for the destruction of the plaintiff's buggy, injury to his horse, and for personal injuries to himself and the loss of the services of his wife and expenses incurred by him for injuries sustained by her. Another suit by Mrs. Shipley resulted in a judgment for her, and the parties agreed that the record in that case should not be transmitted to this court, but that the judgment therein rendered should abide the result of this appeal. In addition to the usual allegations in such cases, it is alleged:

"That thereafter the defendant Howard E. Myers adopted and ratified said act, reckless, careless, and negligent operation of said automobile, by his said _____ or son, the defendant E. Ray Myers, whereby the plaintiff and his wife were damaged and injured as aforesaid, and assumed liability and responsibility for it."

The only bill of exceptions in the record is one presenting the rulings of the court in rejecting the defendants' prayers 1 and 1 1/2, but the appellants' attorneys in their brief concede that prayer 1 1/2 was bad under what we said in Firor v. Taylor, 116 Md. 69, 84, 81 A. 389. The only one for our consideration, therefore, is the first, which is:

"That under the pleadings there is no legally sufficient evidence from which the jury may find that the defendant Howard E. Myers was responsible in any way for the injury on account of which recovery is sought in this suit, and the verdict of the jury must be for the said Howard E. Myers."

Apparently the appellants were under the impression, by reason of what was said and done in Firor v. Taylor, 116 Md. 69, 84, 81 A. 389, and Ewing v. Rider, 125 Md. 149, 156, 93 A. 409, that, as there was a joint judgment against the two, there must be an affirmance or reversal of that joint judgment under the first prayer, but, since those decisions Acts 1920, c. 229, adding section 22B to article 5 of the Code, was passed, providing that-

"If on appeal, it shall appear to the Court of Appeals that said judgment should be affirmed as to all said defendants or should be reversed as to all said defendants or should be affirmed as to one or more of said defendants and should be reversed as to one or more of said defendants, then, the said Court of Appeals may so direct."

As there is no valid exception in favor of E. Ray Myers, the only question therefore before us is whether the judgment against Howard E. Myers should be affirmed or reversed.

Howard E. Myers owned the car which is alleged to have caused the injuries complained of. He was called as a witness by the plaintiff, and it appears in his testimony that he had six children, E. Ray Myers being the second one. He got this car in April or May, 1920, and had one before, which he traded and got this one. He was asked:

"Q. Is this car used for your family? A. Yes, sir. Q. Who had been running the car; your son? A. Yes, sir; both of them; the boy next to him and the older boy before he left home. Q. All of them had a right to use it for family use? A. Yes, sir."

On cross-examination he testified that his son Ray was 22 years old; that he employed him on the farm, and paid him wages by the month, and he was so employed at the time of the accident. He said, if the boys were out and wanted gasoline or oil, they got it, and, if anything happens, like spark plugs or something like that, they get them and pay for them. He said he did not know anything about the accident at the time it happened; that he did not know anything about his son taking the car out that night, or for what purposes he took it; that the night of the accident the car was at a garage in Westminster, where it had been for a day or two. He was asked:

"Q. What was it there for? A. For some little repairs; I don't know. I think maybe battery trouble. I don't pay much attention to the car myself."

He said he did not know anything about his son going for the car that night, and he had not told him to go. He was asked by the attorney for the plaintiff:

"Q. Of course, Mr. Myers, your son, as you have stated, had perfect authority to get that car that night and use it? A. If it was done, he had. I didn't tell him nothing about it. Q. You didn't tell him not to do it? A. No, sir."

Upon being asked by his attorney:

"Q. It was not for any purpose of yours that he would go down the road to an oyster supper? A. I wouldn't think so; he didn't bring me any oysters back."

The defendant E. Ray Myers said the automobile had been at the garage a day or two; that he went to town that night on the train (they lived three or four miles from Westminster), and did not have any conversation with his father in reference to the automobile; that they had said at the garage that they expected it would be finished, and he went for it; that Earl Shaffer got in the car with him, and they were going to an oyster supper at a village called Gamber. Earl Shaffer corroborated him. It is a five-passenger Paige car, and they expected to get two girls to go with them, but had not when the accident happened.

We come now to the question left unanswered in the case of Whitelock v. Dennis, 116 A. 68, decided at this October term, whether the owner of an automobile provided by him for the use of his family is liable to a party injured by the negligence of his son when the car was being used wholly for purposes of the son, and not for those of the owner. In the case of Whitelock v. Dennis we said:

"We are not willing to commit ourselves to the doctrine that an owner of an automobile is responsible for injuries sustained by a third party by reason of the negligence of a minor son in running the car, if the car was at the time being used by the son for his own purposes, and not for those of his father, even if he had the permission, express or implied, of his father so to use the car."

And we said that the defendant's third prayer, which in substance announced that rule, should have been granted. Of course, we were careful to confine the rule to such facts as we then had before us, which did not show that the use of the car by the son necessarily or probably involved unusual danger, and there was no evidence of his being reckless or incompetent to drive a car. That son was only 18 years of age, but he had a state license to operate a car. As there was a conflict of evidence in that case as to whether it was being used for the father, we held that the case should go to the jury.

There is an unfortunate conflict in the decisions bearing on this subject. Many of them have been made by courts of high standing and have been supported by forcible and exceptionally able opinions, presenting the views of the respective sides, if we may use that term, of the controversy. We cannot but be impressed, however, with the conviction that some of them have disregarded principles of law applicable to the relations of principal and agent and master and servant which before the days of automobiles, and especially before they had become so numerous on our streets and other highways, were supposed to be as firmly fixed as any principles known to the common law.

There have been some attempts to separate the decisions of the courts in the different states into two main classes, those holding the owner of cars purchased for the uses of their families responsible for injuries sustained by the negligent driving of their sons, or other members of their families and those holding that they were not liable, but, as many of them depend upon the facts of the particular cases, it is necessary to examine them critically in order to ascertain how they can be properly classified. In this case, as an adult son, living with his father, was driving the car for his own purposes, without the knowledge of his father that he was using it on that occasion, but undoubtedly with implied authority so to use it, we will refer to such of the authorities as may be of use in support of the position we will announce for this court. One of the fullest discussions we have found on the subject is in the case of Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127. There the case of Daily v. Maxwell, 152 Mo.App. 415, 133 S.W. 351, which is often cited in support of the view that the owner is liable, was expressly overruled, as was Hays v. Hogan, 180 Mo.App. 237, 165 S.W. 1125. The Supreme Court of Missouri held that-

"The mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained thereby, through the negligence of his minor son while operating the same on a public highway, in furtherance of his own business or pleasure; and the fact that he had the father's special or general permission to so use the car is wholly immaterial."

Of course, the fact that the son is an adult does not lessen,...