Posey v. Krogh

• Citation: 259 N.W. 757,65 N.D. 490
• Decision Date: 09 April 1935
• Docket Number: No. 6300.,6300.
• Parties: POSEY v. KROGH. MILNE v. SAME.
• Court: North Dakota Supreme Court

65 N.D. 490

259 N.W. 757

POSEY

v.KROGH.

MILNE

v.SAME.

No. 6300.

Supreme Court of North Dakota.

Dec. 20, 1934.

On Rehearing April 9, 1935.

On Rehearing.

Syllabus by the Court.

1. Where a daughter over the age of twenty-one years is living in the home of her father as a member of his family, an automobile owned by her individually is not governed by the rules dealing with the “family car” of the head of the family, and where a member of the father's family uses this car in the service of the father, with the consent of the owner, the “family car” doctrine does not apply so as to make the owner of the car liable for injuries sustained by a third person while the car is being used in the service of the father.

2. Where such owner of a car permits her minor brother, a member of her father's family, to use the car in the service of the head of the family, and the driver uses the car for a purpose other than that for which it was intrusted to him, a guest of the driver cannot recover from the owner for injuries received while riding in the car-the owner being absent-unless it be shown that the owner of the car was guilty of gross negligence; as chapter 184 of the Session Laws of 1931 denies recovery to a guest accepting “a ride in any vehicle, moving upon any of the public highways of the state” (section 1) as against the owner of the car, unless it be shown the injury proximately resulted from the intoxication, willful misconduct, or gross negligence of such owner, and the burden of establishing such cause is on the guest.

3. It is not gross negligence per se on the part of said daughter to permit her brother to use her car in the service of her father, in the absence of any proof showing special circumstances, such as he was a habitually reckless driver and that she knew this at the time she loaned the car.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Actions by Evelyn Posey, by Clara Posey, her guardian ad litem, and by Harriet Milne, by R. B. Milne, her guardian ad litem, against Blanche A. Krogh. Judgment for plaintiffs, and defendant appeals.

Actions dismissed.

Sullivan, Fleck & Sullivan, of Mandan, for appellant.

J. A. Coffey, of Jamestown, for respondents.

BURR, Chief Justice.

These actions are an outgrowth of the same automobile accident, and by stipulation of the parties were tried together under an agreement to have separate verdicts and separate judgments entered.

Separate verdicts were rendered in favor of the plaintiffs and separate judgments entered. The defendant made a motion for a directed verdict at the close of the plaintiffs' case, renewed it at the close of the entire case, and made a motion to dismiss-such motions being denied by the court and the defendant has appealed.

One issue is determinative of both cases. As respondent says: “These two cases arise out of the same automobile accident. They are ‘Guest cases.’ The defendant is charged with gross negligence in the driving of an automobile upon Highway No. 10. It is claimed that the defendant was the owner of the car, but not the driver at the time of the accident; that the driver was Lyle Krogh, a brother of the defendant.”

The plaintiffs were minors and had left their homes to attend a summer conference in Jamestown. After being settled in the city, and while on the streets, they met Lyle Krogh, a brother of the defendant, who was driving his sister's car. With him were two young men. The girls were invited to ride and it is the claim of the plaintiffs that during this trip Lyle Krogh was guilty of such gross negligence that there was a collision with a truck and both girls were severely injured. It is not claimed by respondents that the defendant was present in the car or knew anything about this “invitation.”

The defendant is a school teacher, and over the age of twenty-one at the time of the accident. When not teaching school, she lived in the home of her father, a merchant in Pingree. She was the owner of the car, according to the respondents' contention, and the evidence shows that the car was used by various members of the father's family for their own convenience and for the convenience of the father. The defendant was not acquainted with either of the plaintiffs though she had seen one of them prior to the accident. On the day of the accident, the father found it necessary to obtain some supplies for his store and ordered his son Lyle, a minor, to go to Jamestown for the purpose of getting the supplies. The son told the defendant of the premeditated trip, and either that he was going to use her car for that purpose or made request for the use of the car. In any event, the defendant knew that he was going to Jamestown and permitted the use of the car. She knew nothing about this contemplated “pleasure trip,” and there is nothing in the evidence to indicate that the brother knew anything about it until he happened to see the plaintiffs on the street in Jamestown. The brother was not on any business for the defendant. If the brother were the servant of any one or under the control of any one, he was the servant of his father and under his father's control at that time.

Respondents ask for an extension of the “family car doctrine.” It is their claim that this car was furnished by the defendant for the use of the family as well as of herself, and therefore this doctrine applies.

[1] But the liability of an owner of a car because of the negligence of another is based on his supposed control over the driver at the time of the accident. Davis v. Newsome Auto Tire, etc., Co., 141 Tenn. 527, 213 S. W. 914;Spelde v. Galtieri, 102 N. J. Law, 203, 130 A. 526;Melchionda v. American Locomotive Co., 229 Mass. 202, 118 N. E. 265;Halverson v. Blosser, 101 Kan. 683, 168 P. 863, L. R. A. 1918B, 498. Ordinarily, when the owner merely permits another to use the car for the latter's individual purpose, the owner is not liable. Armstrong v. Sellers, 182 Ala. 582, 62 So. 28;Santoro v. Bickford, 229 Mass. 357, 118 N. E. 665. Something more than mere ownership is necessary to establish agency between the lender and the borrower (Phillips v. Gookin, 231 Mass. 250, 120 N. E. 691); mere borrowing does not establish this relationship (Brown v. Chevrolet Motor Co., 39 Cal. App. 738, 179 P. 697), it is only when the driver was in charge of the car on the owner's business and under his control that the owner would be liable (Irwin v. Judge, 81 Conn. 492, 71 A. 572). Hence, when the head of the family furnishes a car for the use of the family and permits the driver to use the car for the purpose of the family, then it can be said that the driver in charge of the car was engaged in the owner's business, and, while using it for family purposes, was under the control of the owner, therefore the owner would be liable.

[2] Respondents insist that the “family car doctrine” is applicable and then cite a large number of cases to show the extent of the doctrine, such as: Vannett v. Cole et al., 41 N. D. 260, 170 N. W. 663;Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25, 10 A. L. R. 1440;Miller v. Kraft, 57 N. D. 559, 223 N. W. 190;Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970;Daily v. Maxwell et al., 152 Mo. App. 415, 133 S. W. 351;Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224;Birch et ux. v. Abercrombie et al., 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59;King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293;Harmon v. Hass et al., 61 N. D. 772, 241 N. W. 70, 80 A. L. R. 1131;Smart v. Bissonnette, 106 Conn. 447, 138 A. 365.

In these cases cited the car belonged to the father, the head of the family, and he furnished the car for the use of the family. In such case the general principle is well exemplified. The father, as the head of the family, owns the car. He purchases it for the use of the family and authorizes the members of his family to use the car for the purpose. It is a general authorization, and, while they are so using it, they are using the car for the purpose for which he purchased it and intrusted it to their care.

Respondents claim that by extension such doctrine is applicable to the case of a daughter, who, though having attained her majority, still lives with her father, and, if she purchases a car which she allows her father to use or the members of his family to use and while purchasing it for her own use primarily she gets it also for “the benefit of this family,” such car can be said to be a family car and subject to the doctrine stated. On cross-examination the defendant answered “Yes” to the question: “And you were using this money (her salary as a teacher) for the purpose of purchasing this car for the benefit of this family and yourself?” She testified that the members of the family could use it whenever they had any occasion and when she was not using it and it was perfectly agreeable to her that the members of this family “could drive it for the purpose of taking their friends.”

In support of this extension of the family car doctrine respondents cite Crouse et al. v. Lubin, 260 Pa. 329, 103 A. 725;De Smet v. Niles, 175 App. Div. 822, 161 N. Y. S. 566;Quinn v. Neal et al., 19 Ga. App. 484, 91 S. E. 786.

The Pennsylvania case was an action where the car was owned by a married daughter and her mother was a member of her family, living with her in the married daughter's home. It was not a case of a child living with the parent in the parent's home, but the case of a parent living with the child in the child's home. Hence the family car doctrine was held applicable.

In the Georgia case the daughter was living with her father in his home and as a member of the family. The father owned the car which was driven by the daughter at the time of the accident. Apparently both father and daughter were made defendants. Owing to the fact that the father owned the car and the daughter was a member of his family, his responsibility was fixed on the theory of the...