Napier v. Patterson

• Decision Date: 14 December 1923
• Docket Number: 34992
• Citation: 196 N.W. 73,198 Iowa 257
• Parties: HENRY NAPIER, Appellee, v. J. W. PATTERSON et al., Appellants
• Court: Iowa Supreme Court

196 N.W. 73

198 Iowa 257

HENRY NAPIER, Appellee, v. J. W. PATTERSON et al., Appellants

No. 34992

Supreme Court of Iowa, Des Moines

December 14, 1923

REHEARING DENIED JUNE 28, 1924.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

ACTION at law, to recover damages on account of personal injury received by plaintiff in a collision between an auto car operated by the defendant Paul and a horse-drawn vehicle in which the plaintiff was riding. There was a jury trial, and verdict returned for the plaintiff in the sum of $ 24,937.50 against the defendants Paul and J. W. Patterson, and a directed verdict in favor of the defendant Mrs. Patterson. Judgment for plaintiff on the verdict, and the defendants J W. Patterson and Paul appeal.

Affirmed.

Clark & Byers, for appellants.

Casper Schenk, for appellee.

PRESTON C. J., EVANS, STEVENS, ARTHUR, and VERMILION, JJ., concur. FAVILLE, J., and DE GRAFF, JJ., dissent.

OPINION

PER CURIAM.

I. While riding as a guest in a one-seated buggy, drawn by one horse, appellee was severely and permanently injured by a collision of appellant Patterson's automobile with the rear of said vehicle. The automobile was owned by appellant J. W. Patterson, and was being operated by the appellant Russell Paul, who, at the time, was a farm hand in Patterson's employ. The accident occurred shortly after 9 o'clock, Sunday evening, November 11, 1917, on Southeast Sixth Street, near its intersection with Davis Avenue, in the city of Des Moines. No claim is made that the evidence was insufficient to justify the submission to the jury of the issue of Paul's negligence. It is earnestly argued, however, by appellants that both the driver of the horse-drawn vehicle and appellee were guilty of contributory negligence. The material evidence upon this point will be stated when we come to the discussion of this proposition.

One of the principal contentions of appellant Patterson is that Paul was driving the automobile on the night in question without his knowledge or consent, and in violation of repeated admonitions to him not to drive it, and that the trip to and from the city was for his own pleasure, and not for any purpose or pursuit of the owner's, or in connection with his employment as a farm hand, and that Mary Patterson, the owner's daughter, and her mother, accompanied Paul at his invitation, as his guests. While there may be more or less confusion in the cases, the liability of the owner of an automobile for damages caused by the negligent operation thereof by a third party rests, under all the holdings of the courts, upon the doctrine of agency, express or implied. Lewis v. Steele, 52 Mont. 300 (157 P. 575); Smith v. Jordan, 211 Mass. 269 (97 N.E. 761); Van Blaricom v. Dodgson, 220 N.Y. 111 (115 N.E. 443); Parker v. Wilson, 179 Ala. 361 (60 So. 150); Missell v. Hayes, 86 N.J.L. 348 (91 A. 322); Watkins v. Clark, 103 Kan. 629 (176 P. 131); McGowan v. Longwood, (Mass.) 136 N.E. 72; Crossett v. Goelzer, 177 Wis. 455 (188 N.W. 627). This is the principle upon which the so-called "family-use" doctrine is based. The driver of the automobile at the time of the accident in question was not a member of Patterson's family, but a servant, employed upon the farm upon which the family lived, a few miles south of Des Moines. This and all other courts adhere to the common-law rule that a parent is not liable for the torts of his child, solely on the ground of relationship. Landry v. Oversen, 187 Iowa 284, 174 N.W. 255; Baldwin v. Parsons, 193 Iowa 75, 186 N.W. 665; Dircks v. Tonne, 183 Iowa 403, 167 N.W. 103; Collinson v. Cutter, 186 Iowa 276, 170 N.W. 420; Sultzbach v. Smith, 174 Iowa 704, 156 N.W. 673; Curry v. Bickley, 196 Iowa 827, 195 N.W. 617; Rowland v. Spalti, 196 Iowa 208, 194 N.W. 90.

To constitute the relation of principal and agent or master and servant, it is not necessary that there be an express contract between them, or that the services be rendered for compensation. The relationship may be either express or implied. Unless, therefore, the appellant Paul was, on the occasion in question and at the time of the accident, the owner's agent, and engaged in performing some service for his employer, the employer is not liable. If, at the time, Paul was in the wrongful possession of the automobile, or was driving it solely for his own pleasure and convenience, then the negligence was his own; and, under the practically uniform holding of the courts, judgment was improperly entered against Patterson in the court below. The question whether Paul was the agent or servant of his coappellant is a question of fact. It is conceded that he was employed as a farm hand, and that he performed the usual labor and duties of such employment, and that he was under the control of and subject to the command of his employer. It may be assumed that acting as chauffeur for the family to and from church on the Sabbath would not be one of the usual and ordinary duties of a farm hand; but there is no reason why such services may not be rendered by a servant of this character, at the request or command of the master.

There should be no confusion in our authorities on the subject of the father's liability for damages inflicted by a member of his family while in charge of and driving an automobile purchased by him for family use. To subject the appellant to liability, something more than the mere relationship must be shown. If an automobile is purchased by the father for the use and convenience of the family, and it is so used by a member thereof, with the knowledge and consent of the parent, express or implied, the relation of master and servant is created, and the doctrine of respondeat superior is applicable. If a member of the family negligently inflicts an injury upon a third party, while driving an automobile owned by his parent, in pursuit of his own pleasure, or for an independent purpose of his own, and under circumstances from which agency cannot be inferred, the father is not liable. Rowland v. Spalti, 196 Iowa 208, 194 N.W. 90. A member of the family, when operating an automobile which was purchased by the father for the use and convenience of such family, with the father's permission or authority, express or implied, is engaged in his service, as his agent. The automobile, in such circumstances, is being operated by the member of the family for the very purpose for which it was purchased by the father. This doctrine is well expressed by the Washington court in Birch v. Abercrombie, 74 Wash. 486 (133 P. 1020):

"In running his vehicle, she was carrying out the general purpose for which he owned it and kept it. No other element is essential to invoke the rule respondeat superior. We think that the instruction which is criticized in the Doran case is, in itself, a complete answer to the opinion. It declared the use of the machine for the purpose for which it was owned, by the person authorized by the owner to so use it, a use in the owner's business. It seems too plain for cavil that a father who furnishes a vehicle for the customary conveyance of the members of his family makes their conveyance by that vehicle his affair,--that is, his business; and anyone driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance, abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one, as well as by all. In this there is no similitude to a lending of a machine to another for such other's use and purpose, unconnected with the general purpose for which the machine was owned and kept."

The following are also well considered cases from other jurisdictions on this point: Missell v. Hayes, 86 N.J.L. 348 (91 A. 322); King v. Smythe, 140 Tenn. 217 (204 S.W. 296); Hutchins v. Haffner, 63 Colo. 365 (167 P. 966); Boes v. Howell, 24 N.M. 142 (173 P. 966); Hazzard v. Carstairs, 244 Pa. 122 (90 A. 556); Freeman v. Green, (Mo. App.) 186 S.W. 1166; Benton v. Regeser, 20 Ariz. 273 (179 P. 966); Uphoff v. McCormick, 139 Minn. 392 (166 N.W. 788); McNeal v. McKain, 33 Okla. 449 (126 P. 742); Stowe v. Morris, 147 Ky. 386 (144 S.W. 52).

One of the purposes for which Patterson purchased the car, according to his own testimony, was that it should be used for the convenience and pleasure of his family. It is true that the evidence shows that he owned two cars, an old one and a new Velie, which Paul was driving on the evening in question, and that he reserved the new car for his own use, and forbade Paul to drive it. This claim, supported by the testimony of Paul, Mary, and Mrs. Patterson, is not necessarily conclusive upon appellee. One of the most common uses of an automobile, for the convenience of the family, is to convey them to and from church on the Sabbath. Appellant did not usually attend church; but the other members of his family were accustomed to go, with more or less frequency. The family resided on a farm, several miles from the city, and when any of its members went to church, they went or were taken in the automobile. The Patterson family consisted of appellant, his wife, and his daughter. At the time of the accident, on the night in question, they were returning home from Des Moines, where they had attended a lecture at an east-side church. Mrs. Patterson was seated in the rear seat, and Paul and Mary in the front seat of the car. Paul was driving it.

The testimony of the members of the Patterson family to the effect that Paul had been forbidden by his employer to drive the automobile, and that it was taken from the premises...