Repczynski v. Mikulak

• Decision Date: 01 July 1927
• Docket Number: 12,737
• Citation: 157 N.E. 464,93 Ind.App. 491
• Parties: REPCZYNSKI ET UX. v. MIKULAK
• Court: Indiana Appellate Court

157 N.E. 464

93 Ind.App. 491

REPCZYNSKI ET UX. v. MIKULAK

No. 12,737

Court of Appeals of Indiana

July 1, 1927

Rehearing denied October 7, 1927. Transfer denied December 15, 1931.

From St. Joseph Superior Court; J. Fred Bingham, Judge.

Action by Walter Mikulak against Gustav Repczynski and his wife for personal injuries. From a judgment for plaintiff, the defendants appealed.

Affirmed.

George A. Shock and Walter R. Arnold, for appellants.

Eli F Seebirt, Lenn J. Oare, Orlo R. Deahl and George W. Omacht for appellee.

Kane, Blain & Hollowell, Amici Curiae, on behalf of appellants.

OPINION

REMY, J.

Action by Walter Mikulak, by his next friend, against Gustav Repczynski and Antoinette Repczynski to recover for personal injuries sustained by appellee as a result of being struck by an automobile which was being operated by Stanley Repczynski, the minor son of appellants. Complaint was answered by denial. Trial resulted in a verdict and judgment for appellee. Separate motions for appellants for a new trial having been overruled, this appeal is prosecuted.

It appears from the evidence that Stanley, the 15-year-old son of appellants, was, with his parents' permission, accustomed to operate the Repczynski family automobile upon the streets of South Bend, and that, on August 28, 1925, while driving said car for his mother, and for her health and pleasure, the machine was caused to run over and seriously injure appellee, who, at the time, was a child of 11 years.

The important question presented by this appeal is the alleged error of the trial court in giving to the jury the following instruction:

"Since March 14, 1925, it has been a criminal offense under our statutes for a person under the age of seventeen years to drive or operate a motor vehicle on the highways of this state. I charge you, therefore, that if Stanley Repczynski operated an automobile upon the public highways of the state of Indiana while he was under the age of seventeen years, he, the said Stanley Repczynski was guilty of negligence. I further charge you that if the defendants, the parents of said Stanley Repczynski, having the care, custody and control of the said Stanley Repczynski, had knowledge of such negligent acts of the said Stanley Repczynski and countenanced his driving an automobile, then the said defendants were guilty of negligence in permitting the said Stanley Repczynski to drive said automobile on the day plaintiff sustained his injuries, and if you find that the negligence of said defendants was the proximate cause of the injuries to the plaintiff, the plaintiff exercising at the time such care as he was capable of, then your finding should be for the plaintiff."

The statute of this state regulating motor vehicles, § 10125 Burns 1926 (Acts 1925 p. 570, § 24), provides that: "No person under the age of seventeen years shall drive or operate a motor vehicle on the highways of this state; Provided, however, that the Secretary of State may issue a permit to any person who is not less than sixteen years of age, upon receipt of an application for such a permit, and upon showing, on the part of the applicant, that the issuance of such permit is a necessity." The penalty for violation is fixed at a fine of from $ 25 to $ 500, to which may be added imprisonment for a term not exceeding one year. The legislatures of some states have authorized minors to operate motor vehicles if the minor is at the time accompanied by an adult; but it is to be observed that the statute of this state makes it unlawful for any person under 17 years of age to operate a motor vehicle, whether accompanied by an adult or not, except that, upon a showing of necessity, a license may be issued to a minor who is 16 years of age. The statute was enacted for the protection of the public, and it is well established that the violation of such a statute is negligence per se.

It is conceded by appellants that the operation of the automobile by their son, who was, at the time, but 15 years of age, was in violation of the statute, but it is contended with much earnestness that, under the facts of this case, there is no liability on their part, and that the giving of the instruction was error, for which the judgment must be reversed, the contention being that, even if the act of their son in driving the automobile was negligent and was a criminal offense, there was no evidence tending to show that the son was acting as their agent or servant, and, in the absence of such showing, they cannot be held liable. Especially is it claimed that there is no evidence that the boy was acting as agent of his father. On the other hand, it is insisted by appellee that the instruction correctly states the law, the contention being that it is not material whether the boy was the agent of his parents or either of them; that, since the boy was under the custody and control of appellants, his parents, they were liable because of their own negligence in consenting to the operation of the machine by the boy in violation of the statute.

The exact question has been before the courts of some other jurisdictions. In the case of Schultz v Morrison (1915), 91 Misc. 248, 154 N.Y.S. 257, it was held that a parent would be liable for an injury resulting from the negligent operation of the parent's automobile by his 16-year-old son, where the parent permitted the boy to operate the car in violation of a statute providing that no person should operate a motor vehicle who is under the age of 18 years, unless the person is accompanied by a licensed chauffeur or by the owner of the car being operated. In the course of its opinion, the court said: "Notwithstanding the provisions of this section, the...