Rew v. Stoddard

• Decision Date: 23 November 1920
• Docket Number: (No. 6462.)
• Citation: Rew v. Stoddard, 225 S.W. 836 (Tex. App. 1920)
• Parties: REW et al. v. STODDARD et ux.
• Court: Texas Court of Appeals

225 S.W. 836

REW et al. v. STODDARD et ux.

(No. 6462.)

Court of Civil Appeals of Texas. San Antonio.

November 23, 1920.

Rehearing Denied December 16, 1920.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit by Joseph B. Stoddard and wife against W. W. Rew and Wallace B. Rew. From a judgment for plaintiffs, defendants appeal. Reversed and rendered as to W. W. Rew and affirmed as to Wallace B. Rew.

Carl, Swearingen & Clifton, of San Antonio, for appellants.

Leo Tarleton and Ryan & Matlock, all of San Antonio, for appellees.

COBBS, J.

This suit was instituted by appellees to recover from appellants damages resulting from injuries caused to Mattye F. Stoddard, wife of Joseph B. Stoddard, by the reckless driving of an automobile operated by Wallace B. Rew, son of W. W. Rew, whose car he was using at the time of the collision. Trial was with a jury, and judgment was against appellants for $750.

It is alleged that the car which Wallace B. Rew was operating collided with and ran violently against the car owned and operated by appellees, whereby appellees' car was overturned, broken, and damaged, and Mattye F. Stoddard was thrown out and she sustained various serious injuries.

It is sought to hold W. W. Rew responsible as the owner of the car for the act of his son, Wallace B. Rew, who the evidence showed, at the time of the alleged accident, though residing at the home of his father, was engaged in business as an employé of another than his father and earning a salary for himself, and was the owner of a car which he kept up at his father's residence and used himself. His father forbade him to use his car, because he desired its use exclusively for himself and wife, and not for family use. On occasions, when the son desired it for special uses, perhaps, such as taking ladies or friends to parties or to ride for pleasure, he made special request of his parents for its use, and generally got it, but was not in the habit of using it without such permission. This time, however, it was taken out without their knowledge or consent, and upon no business of his father whatever. Though living with his father, he was in no business with or for him, but working for the Magnolia Petroleum Company for a salary on his own account.

It has been held that the master would not be responsible for the torts of servants done not within the scope of their duty or in furtherance of the master's work or business. Using the automobile with the consent of the master for his own enjoyment, and in no sense in the business of the master, will not, for that reason, make the master responsible for the negligent acts of the servant. Van Cleave v. Walker, 210 S. W. 768.

The Supreme Court of Missouri, in Hays v. Hogan, 273 Mo. 1, 200 S. W. 288, L. R. A 1918C, 715, Ann. Cas. 1918E, 1127, held that a minor child operating his machine for that reason cannot be regarded as the father's agent performing his service. Nor is he liable for the torts of his minor child, or adult child for that matter, simply because of that relationship, Nor is he...