Roark v. Stone

• Citation: 30 S.W.2d 647,224 Mo.App. 554
• Parties: TOM ROARK, RESPONDENT, v. J. L. STONE ET AL., APPELLANTS
• Decision Date: 29 July 1930
• Court: Court of Appeal of Missouri (US)

30 S.W.2d 647

224 Mo.App. 554

TOM ROARK, RESPONDENT, v. J. L. STONE ET AL., APPELLANTS

Court of Appeals of Missouri, Springfield

July 29, 1930

Appeal from the Newton County Circuit Court.--Hon. Emory E. Smith Judge.

AFFIRMED.

Judgment affirmed.

Leo H Johnson for appellant.

(1) A parent is not liable for the tort of its minor child merely because of such relationship. Curtis v. Harrison (Mo.), 253 S.W. 474; Zeeb v. Bahnmaier, 103 Kans. 599, 2 A.L.R. 883; Mayes v. Fields (Mo.), 217 S.W. 589; Arkin v. Page, 287 Ill. 420, 5 A.L.R. 216; 20 R. C. L. 627. (2) And in this State, a parent and owner of an automobile kept for family purposes, is not liable for an injury resulting from its negligent operation by its minor child except and unless such child is operating the car on some mission for the parent and at the time is within the scope of that duty. Hayes v. Hogan, 273 Mo. 1; Mayes v. Fields (Mo.), 217 S.W. 589; Buskie v Januchowsky (Mo.), 218 S.W. 696; Bright v. Thacker, 202 Mo.App. 301, 215 S.W. 788. (3) Where it is not shown that the minor child was operating the parents' car at the time in question within the scope of its duty to the parent on some mission for the parent it is the duty of the trial court to give a peremptory instruction in favor of such parents. Holman v. Bulene (Mo.), 200 S.W. 1068. A parent is not liable for the torts of an emancipated minor son. Mebas v. Werkmeister (Mo.), 299 S.W. 601. (4) A parent may emancipate his minor child wholly or partially for the whole period of minority or a shorter term, conditionally or unconditionally and at whatever age he deems best. 29 Cyc. 1272-A, 20 R. C. L., p. 608, sec. 20; 20 R. C. L., p. 611, sec. 1. (5) Whether or not a child has been emancipated is a question for determination by the jury. State v. Block, 108 Mo.App. 88; 46 C. J. 1346-F. As to right to emancipate child and effect thereof generally, see Woodward v. Donnell, 146 Mo.App. 119, 126; McMorrow v. Dowell, 116 Mo.App. 289, 298; Brosius v. Barker, 154 Mo.App. 657; Singer v. Railroad Co., 119 Mo.App. 112, 115; Winebremer v. Ebberhart, 137 Mo.App. 659.

James Tatum and Ruark & Ruark for respondent.

(1) John Stone was an incompetent driver because so declared by the Legislature of Missouri, First Extra Session, Act 1921, section 27. A person who intrusts a motor vehicle to the hands of an incompetent driver, or to a person declared by law to be incompetent (as lack of age), is liable for injuries resulting from such driver's negligence. Motor Vehicles, 42 C. J. , sec. 836, pp. 1078-9-10; Berry on Automobiles (3d), p. 1040; Huddy on Automobiles (6th) sec. 662; Paschall v. Sharp, 110 So. 387; Rush v. McDonald et al., 106 So. 175; La Rose v. Shaughnessy Ice Co., 189 N.Y.S. 562; Shulz v. Mottison, 154 N.Y.S. 257; Taylor v. Stewart, 90 S.E. 134; Cirosky v. Smathers, 122 S.E. 864; Hopkins v. Drappers, 198 N.W. 738; Laubach v. Colby, 129 A. 88; Wilcox v. Wunderlich, 272 P. 207; Repczunski v. Mukulak, 157 N.E. 464; Gordon v. Dodard, 164 N.E. 374; Walker v. Klopp, 157 N.W. 962; Rocca v. Steinmetz, 214 P. 257; Badder v. Driverless Cars, 120 So. 515. (2) Under his own testimony the defendant J. L. Stone had furnished and provided minor with an automobile to drive to and from school. He thus became liable for the tort of the minor. Mebas v. Werkmeister, 299 S.W. 601. (3) Emancipation is a matter of defense, a matter of avoidance to be affirmatively proved by the defendant. If it is a defense at all, it is incumbent upon him to prove it and if he fails to prove it, that part of his defense is lost. Singer v. Railroad, 119 Mo.App. 112; Songer v. Mercantile Co., 110 Mo.App. 389; Robinson v. Floesh, 242 S.W. 423 and citations; Brosius v. Barker, 154 Mo.App. 663.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

Plaintiff brought suit to recover damages for personal injuries alleged to have been sustained by him in a collision between a truck which he was driving and a roadster being driven at the time by defendant John Stone, a minor son of defendant J. L. Stone. The petition sets forth that John Stone was living with and being educated and supported by his father J. L. Stone; that defendants live some five miles west of Neosho, Missouri; that the said J. L. Stone was sending his said minor son to the Neosho Public schools and for that purpose had provided said minor with an automobile to run and operate to and from school each morning and evening.

It is further alleged that on February 21, 1928, the plaintiff was driving a truck loaded with cattle at or near the intersection of Highway 71 and the Neosho-Seneca public road, where it was struck by a car being driven by John Stone, who was at the time traveling from his home to Neosho to attend school; that, "At said time the plaintiff was traveling in a northwestern direction, at a place where there was a curve in such highway and the said defendant approached the plaintiff upon said highway from the northwest, running his car upon the wrong or left hand side of such highway and at a high and dangerous rate of speed, to-wit, a speed of about fifty miles an hour and carelessly and negligently ran his said car with great force and violence upon and against plaintiff's car without sounding the horn on his car or giving to plaintiff any notice of his approach."

It is further alleged that plaintiff was severely and permanently injured as a result of said defendant's negligence, particularly, in that his knee cap was broken, for all of which injuries plaintiff prayed damages in the sum of $ 5000.

The answer of defendant John Stone denied he was being supported by his father, J. L. Stone, or that his father was sending him to school, but alleged that defendant was making his own way and schooling himself. It is further alleged the accident was the result of plaintiff's own reckless and negligent driving of the truck.

The separate answer of defendant J. L. Stone pleaded the oral emancipation of his son John, and denied that the said son was being sent to school by him in February, 1928, and further alleged he had no knowledge that his son had, "taken the car and left for school until after he had gone." The trial was to a jury and resulted in a verdict for plaintiff against both defendants in the sum of $ 500. Defendants have appealed.

Defendants urge that the demurrer to the evidence offered by John Stone at the close of the whole case should have been sustained. Considering the facts from the standpoint of plaintiff's evidence, as we are bound to do, there can be no question the demurrer was properly overruled. Such facts, in brief, tended to prove that Young Stone was driving the car in question at an excessive rate of speed (40 to 50 miles per hour), around a curve at the intersection of two state highways, just outside Neosho, Missouri; that he was driving on the wrong side of a much travelled road; that he ran the automobile, which he was operating, against plaintiff's loaded truck, being driven by him on the right side of said highway at a very slow rate of speed, with such violence as to push it backward some eighteen feet. Plaintiff's evidence further tended to show he was in the exercise of the highest degree of care at the time and we are bound by his testimony, although it was in direct conflict with that of defendant John Stone.

The principal question raised in this case is in regard to the liability of defendant J. L. Stone, the father of the minor John Stone who was operating his father's car at the time of the accident. Defendant pleaded and attempted to establish the fact that the son John, had, by oral agreement between father and son, become emancipated at the age of thirteen. The evidence on this phase of the case, together with a refused offer of proof, was sufficient, we think, to make a question for the jury on the issue of emancipation. It is unnecessary to consider that question, however, if the theory upon which plaintiff's case was tried be correct. The petition charged that defendant John Stone was a minor under sixteen years of age at the time of the accident and that defendant J. L. Stone had provided him with an automobile to run and operate from his home to and from school. The testimony of defendant J. L. Stone as to the boy driving the car was as follows: "Had I provided the way for the boy to go to school and back? Well, I had the car and of course there was no other way for him to go to school, so he took the car. He had been doing that one term and a half before the accident. The title certificate to the car is in my name. He kept the car in town, then came home in it to help me. I bought the car for the family. It was bought before the boy started to high school."

Under the laws of this State it is unlawful for any person under the age of sixteen years to operate a motor vehicle on the rightways. [Laws 1921, Extra Session, sec 27, p. 104.] It is plaintiff's contention that a person who intrusts a motor vehicle to the hands of an incompetent driver or to a person deemed incompetent under the law on account of lack of age, is liable for injuries resulting from such driver's negligence. The particular point has apparently never been passed upon by the courts of this State. It has been held in other jurisdictions that an owner, who lends an automobile to a person forbidden by statute to operate same on the public highways, is liable for the negligence of the borrower in the operation of the automobile. [36 A.L.R., p. 1152, note par. c.] In 42 C. J. 1078, article 836, it is said: "The owner of a motor vehicle may be held liable for a resulting injury upon the ground of negligence where he entrusts the operation of his vehicle to an inexperienced or incompetent driver with knowledge of such incompetency." The case...