Pratt v. Cloutier

• Decision Date: 04 June 1920
• Citation: 110 A. 353
• Parties: PRATT v. CLOUTIER.
• Court: Maine Supreme Court

110 A. 353

PRATT

v. CLOUTIER.

Supreme Judicial Court of Maine.

June 4, 1920.

Exceptions from Superior Court, Androscoggin County, at Law.

Action by John T. Pratt against George A. Cloutier. There was a verdict for defendant, and plaintiff excepted. Exceptions overruled.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff. Walter M. Sanborn, of Augusta, for defendant.

HANSON, J. This is an action on the case brought to recover damages sustained by plaintiff as a result of certain injuries to his automobile alleged to have been caused by the negligence of defendant. The writ was dated January 28, 1919, and was entered at the March term, 1919, of the superior court for the county of Androscoggin. The cause was heard before a jury at the May term, and a verdict returned in favor of the defendant. The plaintiff filed exceptions, on which the case is now before this court for its determination.

On November 16, 1918, the plaintiff, with three other persons of full age and two children in his car, was driving in a northerly direction on the road from Greene to Leeds, in Androscoggin county. His car was a light Ford touring car.

The defendant's car, a high-power Paige touring car, going in the opposite direction at the time of the collision, was driven by his son, Davila Cloutier, accompanied by a young lady friend only.

The plaintiff claimed that the defendant's automobile was driven at an excessive rate of speed, on the wrong side of the road, and carelessly and negligently ran into and upon the plaintiff's car, causing the, damage sued for.

At the trial the following admission was made by the defendant's attorney, to wit:

"It is admitted that the car colliding with the Pratt car belonged to or was owned by the defendant and was in the possession of Davila Cloutier and driven at that time by the permission of the defendant, and further that the young man, Davila Cloutier, is the son of the defendant and a member of his family, and was authorized by the defendant to drive this car at any time for his personal or family pleasure, and at the time of the accident the car was being driven by Davila Cloutier for his personal pleasure."

The plaintiff requested the following instruction, which the presiding justice declined to give:

"If the father, George A. Cloutier, bought the automobile for the general pleasure of his family and the individual members thereof, and authorized his son, Davila Cloutier, to take the car and use it any time whenever he wanted to for such pleasure, and the son was so using the car at the time of the collision, then the defendant is liable."

The plaintiff excepted, and also took exception to the charge as a whole, and particularly to the failure of the presiding justice to instruct the jury that if the father, George A. Cloutier, the defendant, bought the automobile in question for the pleasure and recreation of his family, of which his son, Davila Cloutier, was a member, and authorized and permitted the said Davila Cloutier to use said automobile for the general pleasure of the family and for his own individual pleasure, then the furnishing of said automobile under such conditions would be a part of the business of the father, George A. Cloutier, the defendant.

1. As to the first exception, it suffices to say that the instruction given in the charge of the justice presiding, instead of that requested, was taken verbatim from the decision of this court in Farnham v. Clifford, 118 Me. 145, 106 Atl. 344, which in no manner differs in principle from the case at bar, and to which we adhere. The plaintiff's requested instruction was properly refused, and he therefore takes nothing by this exception.

2. Exception No. 2 raises practically the same question that counsel raised in Farnham v. Clifford, supra, urging that the presiding justice failed to give to the jury proper instruction as to the meaning of the word "business" as applied to this ease. We quote in full that part of the charge of the presiding justice to which exceptions were taken, and express our entire concurrence in the law as stated therein. The presiding justice instructed the jury as follows:

"The plaintiff says that as a matter of law whatever negligence, if you find any, was committed in the conduct of the defendant's car was committed by the defendant, because whatever a person does by his servant he does by himself in the eye of the law.

"He says that in this case you must find the defendant guilty just the same as if he had been there driving that car because, as he asserts and claims, the young man who drove the car was, in the eyes of the law, the servant of the defendant. That is the law, if he was a servant of the defendant at that time, and, if he was not the servant of the defendant, the defendant is not liable. I shall give you the law as it has very recently been stated in this court.

"'Liability cannot be cast upon the defendant (that is, George A. Cloutier in this case) because he owned the car or because the driver at the time of the accident was his son or because he permitted his son to use the car for his own purposes. There must be the further relation of master and servant between them, and the son at the time of the accident must have been using the car in the business of the defendant.'

"I do not know as I need to illustrate what would or would not be the business of the defendant. You can see that, if you have a man in your employ and you send him out to do a job, he is your servant in that respect. He is serving you, rendering you service, and if he does the job unsuccessfully you are responsible for it. If he does it well, you, perhaps, will get your pay for it.

"In this case, as to this point, the only question you have to consider is whether the young man, when he was out with this car that evening, was in any way upon the business of his father, or was he entirely and absolutely on his own business and on his own pleasure, using the father's car by the permission of his father, and not in any way on business for the father. That is the only question as to this branch of the case."

The charge placed the question squarely before the jury whether the relation of master and servant existed between the defendant and his son, and was wholly in accord with the law as stated in Farnham v. Clifford, supra, which is decisive of this case; and it may be said that the question was one for the jury exclusively. To hold otherwise, and announce a rule such as is contended for here, would be to transcend our authority, and a departure from established law. The plaintiff cites and relies upon: Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527:

"Where an automobile was provided by a father for the use of members of his family, and an adult son was chauffeur for them, and was permitted to use the car for his own pleasure, the son was an agent of the father, though using the car for his own pleasure."

Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224:

"Where defendant bought an automobile for the comfort and pleasure of his family, his son being authorized to use it at any time for such purpose, the son, in taking it out for the pleasure of himself and sister, with whom were some friends, was a servant or agent of defendant, not performing an independent service of his own, but the business of defendant, making defendant liable for his negligence in driving it."

Hayes v. Hogan (1914) 180 Mo. App. 237, 165 S. W. 1125:

"Where an adult son, living with his father as a member of the family, used the father's automobile, purchased for general family use, with the father's express or implied consent, on a trip purely for his own pleasure and in no way connected with any business of the father, the relation of master and servant existed, and the father was liable for the death of plaintiff's husband caused by the negligence of the son in so operating the car."

Plaintiff cites also Johnson v. Smith (Minnesota Supreme Court July 25, 1919), 173 N. W. 675. As to Hays v. Hogan (December 22, 1917) 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127, it will be found upon examination that the final decision of that case was against the plaintiff's position, although in the first instance holding as plaintiff contended. The opinion reported in 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127, holds "that a father is not liable for the torts of his minor or adult children simply because of the relationship," and that "a father is not liable for the negligence of a minor son in driving an automobile purchased for the use of the family, solely in furtherance of the child's own business or pleasure, and permission of the father is immaterial." It will be found also that the conclusion therein negatives the value of Marshall v. Taylor and Stowe v. Morris, supra, as authorities in the instant case. Reference is made to Blair v. Broadwater, infra, where, as in Hays v. Hogan, will be found an exhaustive review of the cases.

In Johnson v. Smith, supra, presented to us by agreement of counsel after this case was argued, and from which we quote at length because of its clear statement of position, the plaintiff's intestate died from an injury received when an automobile in which she was riding overturned through the alleged negligence of the driver thereof, the defendant, Harold Smith, the minor son of the defendant Swan Smith. Father and son were sued. The father kept the automobile for business and pleasure. Harold, a minor, was usually the driver, and at the time of the accident was using the automobile, with the implied consent at least of his father, in conveying plaintiff's intestate, a guest at the home of the defendants. The accident causing the death of plaintiff's intestate was due to the careless driving by Harold Smith. The separate motion of defendants for a new...