Palmer v. Miller

• Decision Date: 21 September 1942
• Docket Number: No. 26413.,26413.
• Citation: 380 Ill. 256,43 N.E.2d 973
• Parties: PALMER et al. v. MILLER.
• Court: Illinois Supreme Court

380 Ill. 256

43 N.E.2d 973

PALMER et al.

v.MILLER.

No. 26413.

Supreme Court of Illinois.

Sept. 21, 1942.

Appeal from Appellate Court, Fourth Division on Appeal from Circuit Court, Massac County; H. A. Spann, Judge.

Actions by Roberta Palmer for personal injuries, and by Robert L. Palmer for expenditures in connection with hospitalization of his wife and treatment of her injuries, against George Miller. From judgments of the Appellate Court, 310 Ill.App. 582, 35 N.E.2d 104, affirming judgments in favor of plaintiffs, defendant appeals.

Judgments of the Appellate Court and the circuit court reversed and cause remanded to circuit court for a new trial.Stone & Fowler, of Marion, and Roy R. Helm, of Metropolis, for appellant.

Alfred Roy Hulbert, of Chicago, and Grover E. Holmes, of Metropolis, for appellees.

STONE, Chief Justice.

The Appellate Court affirmed two judgments entered in the circuit court of Massac county against the appellant, George Miller. One was in favor of appellee Roberta Palmer and the other in favor of her husband, Robert L. Palmer. Leave to appeal was granted. The judgment in favor of Mrs. Palmer is for damages for personal injuries she sustained while riding in an automobile being used to convey the appellant to a doctor for medical care. Robert L. Palmer's judgment was for the recovery of money he expended for and on behalf of his wife in giving her medical and hospital care. Mrs. Palmer's injuries were severe and of such a nature as to necessitate heavy expenditure of money for medical services and hospitalization. No question is raised as to the excessiveness of either judgment. The defense interposed was not guilty.

On the evening of May 29, 1939, appellees were attending a dance at a country club located a short distance from Metropolis. Appellant obtained permission to use his mother's automobile and took Dan Park and four others to the dance. During the course of the evening appellant received a cut on the palm side of his left wrist. It bled profusely and although a tourniquet was placed on the arm it continued to bleed. Some of those present, including Park, thought appellant needed medical care and assisted him from the dance hall to the automobile which appellant had driven to the party. Park obtained the automobile keys from appellant and assisted him into the front seat. Park then returned to the dance floor and asked Mrs. Palmer, who is a professional nurse, if she would accompany them and assist in caring for appellant. She agreed and went with Park to the automobile where appellant was waiting. She testified that before entering the automobile, appellant, who was then sitting in the front seat, asked if she would go with him and help, to which she consented. Park drove, appellant sat in the front seat by him and Mrs. Palmer to his right. Others occupied the rear seat. A gravel roadway extended from the country club to the State highway a distance of approximately a mile. The State highway was paved with concrete. Park drove very rapidly and on rounding a curve drove the car off the paved road. It struck a tree and turned over, seriously injuring Mrs. Palmer. There was no charge of wilful and wanton negligence.

The allegation of the complaint was that the acts of negligence alleged were committed by appellant by and through Dan Park who was then and there acting as his servant and agent. At the time of the accident appellant's age was twenty years and ten and one-half months. His defense was that as he was a minor he can not be held liable for the negligence of Park. He contends that, since the relationships of principal and agent and master and servant arise out of contract, actual or implied, he, by reason of his minority, did not have the power to make such a contract and, therefore, he can not be held liable under the principle of respondeat superior. The Appellate Court sustained appellant's contention on this point but concluded that the allegations of the complaint that the appellant committed the negligent acts through his agent and servant should be treated as surplusage, thus leaving a positive allegation that appellant committed the acts of negligence.

The rule is that as a minor may not make a contract, he cannot establish the relationship of master and servant or principal and agent and so cannot be held liable for the tort of another under the doctrine of respondeat superior, though he may, aside from certain limits as to age and intelligence, be held liable for his personal tort. Covault v. Nevitt, 157 Wis. 113, 146 N.W. 1115, 51 L.R.A.,N.S., 1092, Ann.Cas.1916A, 959; Gillet v. Shaw, 117 Md. 508, 83 A. 394, 42 L.R.A.,N.S., 87; Burnham v. Seaverns, 101 Mass. 360, 100 Am.Dec. 123; cases cited in 27 Am.Jur., p. 813. The doctrine of respondeat superior rests upon a contractual relation. It is evident that to support the application of such principle it is necessary that there be not only a valid contract of employment but that the acts of negligence complained of were committed while the servant was engaged in the scope of his employment under the contract. Since appellant's minority prevented him from making a contract for the services of Dan Park for driving the automobile, the contract is not present in the instant case and he cannot be held liable under the doctrine of respondeat superior. Covault v. Nevitt, supra; 1 Cooley on Torts (3d ed.) 188; Hodge v. Feiner, 338 Mo. 268, 90 S.W.2d 90, 103 A.L.R. 483; 14 R.C.L. sec. 36, p. 260.

Counsel for appellees argue that although appellant, a minor, was incompetent to make a contract of agency, he was present in the car which was being driven for his benefit, and the law imputes the negligence of the driver to him. With this we cannot agree. It is fundamental in the law of imputed negligence that to impute the negligence of one person to another, such persons must stand in a relation of privity and there is no such thing as imputable negligence except in those cases where such a privity as master and servant or principal and agent exists. This rule applies to infants as well as to a stranger. Infants are responsible for their own negligence, only. Smithers v. Henriquez, 368 Ill. 588, 15 N.E.2d 499;Nonn v. Chicago City Railway Co., 232 Ill. 378, 83 N.E. 924,122 Am.St.Rep. 114.

Counsel for appellees also argue that as appellant was riding in the seat with Park at the time of the accident, and was presumed to be in control of the car, and the trip was made for his benefit, he is liable notwithstanding he was incapable because of infancy of entering into a contractual relationship of master and servant of principal and agent with the driver, Park. The rule is that liability for damage caused by the negligent act of the driver of an automobile, not arising under the doctrine of respondeat superior, does not attach against a person other than the driver, unless that person is the owner of the automobile or possesses the right to control the driving of it, and such owner or possessor is riding in the automobile at the time of the injury and negligently fails to properly control the driver. Where the owner of the car is riding in it, he has not only the right to possession of it but has such possession and he necessarily retains the power and the right of controlling the manner in which it is being driven unless it is shown that he has contracted away or abandoned that right. He likewise has the duty to control the driver. The inference is that the owner knew of the improper operation of the car and became responsible for the consequences of such operation. Wheeler v. Darmochwat, 280 Mass. 553, 183 N.E. 55;Daggy v. Miller, 180 Iowa 1146, 162 N.W. 854;Powers v. State, 178 Md. 23, 11 A.2d 909;Rodgers...