Smith v. Babcock, 11818

• Decision Date: 19 March 1971
• Docket Number: No. 11818,11818
• Citation: 157 Mont. 81,482 P.2d 1014
• Court: Montana Supreme Court
• Parties: Everett E. SMITH, Plaintiff and Appellant, v. Edward E. BABCOCK, Defendant and Respondent.

Page 1014

482 P.2d 1014

157 Mont. 81

Everett E. SMITH, Plaintiff and Appellant, v. Edward E. BABCOCK, Defendant and Respondent.

No. 11818.

Supreme Court of Montana.

March 19, 1971.

Harrison, Loendorf & Poston, Helena, John P. Poston (argued), Helena, for appellant.

Small, Cummins & Hatch, Helena, Carl A. Hatch (argued), Helena, for respondent.

JOHN C. HARRISON, Justice.

This appeal is from a jury verdict in the first judicial district, county of Lewis and Clark, denying recovery to the plaintiff on his complaint and to the defendant on his counterclaim. Plaintiff appeals from a judgment on the jury verdict and the trial court's subsequent denial of a new trial.

The action involves a collision of two automobiles, one owned by the plaintiff Everett E. Smith, hereinafter referred to as 'Smith', the other owned by defendant Edward E. Babcock, hereinafter referred to as 'Babcock'. The collision occurred on February 25, 1967, on the Lincoln Interchange of Interstate Highway No. 15, approximately 10 miles north of Helena.

At the time of the accident, Smith's car was being driven by one Russell Hamilton, sixteen year old nephew of Smith's wife, who had been living with the Smith family since September 1966. On the day of the accident, Hamilton requested the use of the Smith automobile, a 1964 Plymouth Fury, to pick up a saddle. Hamilton and his brother had made a deal to break some horses, for which they were to be given a colt, and the saddle to be picked up was to be used in breaking the horses, in fulfillment of Hamilton's part of the bargain. The record is clear that Hamilton had the express permission of Mrs. Smith to use the family car, and that neither Smith nor his wife had any interest whatsoever in the purpose of the trip made by Hamilton in the automobile.

To return home from this trip, Hamilton drove Smith's car east on a county road that passes over Interstate Highway No. 15. Babcock had taken the northbound off-ramp from the Interstate Highway, stopped at the stop sign for the county road, and, upon seeing no approaching traffic either from east or west, proceeded to turn left, intending to drive west to Canyon Creek. While in the process of making the turn, he was struck by the Smith car driven by Hamilton. Babcock was driving a 1962 Plymouth Valiant. There is no direct evidence of the speed of the Smith car at the time of impact, but Hamilton testified that he was driving about 60 miles per hour at the time he first saw Babcock. He testified that upon seeing the Babcock car he hit his brakes but skidded some distance before striking the Babcock car.

The record shows that at the time of the accident Hamilton had had a driver's license for six months but that he had also driven farm machinery and cars on back roads before receiving his license. Smith testified he had never before loaned his car to Hamilton to drive alone, but had driven with him and believed him to be a competent driver. Hamilton had his own car which was not available the day of the accident. In addition, he had never before had an accident nor received a traffic violation citation.

Smith brought suit against Babcock for damages suffered from loss of use of his automobile and damage to the automobile, due to Babcock's negligence, in the sum of $2,000. Babcock denied Smith's allegations in his answer and counterclaimed against Smith for damages to his automobile in the amount of $1,045, due to Smith's negligence in intrusting to Hamilton the automobile, which he alleged, Hamilton negligently drove into Babcock's automobile.

Discovery in the form of interrogatories was completed by both parties. Based upon the pleadings and answers to interrogatories, Smith moved for summary judgment and requested dismissal of Babcock's counterclaim. Both motions were denied and the case was tried to a jury on September 29, 1969. At the close of the evidence, both parties made motions for directed verdicts, which were denied. The jury returned a verdict denying recovery to either party on their respective claims.

Smith's motion for a new trial was denied. From the verdict, the judgment thereon, and the denial of his motions for a directed verdict and new trial, Smith appeals.

Four issues are presented on appeal.

1. Did the trial court err in refusing to give plaintiff's proposed instruction No. 6?

2. Did the trial court err in denying plaintiff's motion for a directed verdict at the close of all the evidence on the defendant's counterclaim and in giving court's instruction No. 18?

3. Did the trial court err in allowing witness Heen to testify over objection and claim of surprise?

4. Did the trial court err in denying plaintiff's motion for a new trial?

The first two quetions hinge upon defendant's contention that plaintiff was negligent in that he intrusted his automobile to Hamilton and that such negligence was a proximate cause of the accident. This argument is used by the defendant to claim recovery on his counterclaim for damages and to prevent plaintiff's recovery on his complaint by virtue of his contributory negligence in intrusting his automobile to Hamilton, who, defendant contends, negligently caused the accident and by whose negligence plaintiff is bound. We find defendant's contentions to be totally unsupported by the facts presented at trial.

Smith offered the following instruction, plaintiff's proposed instruction No. 6, which was refused by the trial court:

'You are instructed more than one person may be responsible for causing injury. If you find that the defendant was negligent and that his negligence proximately caused injuries to the plaintiff, it is not a defense that some third person may also have been negligent.'

Clearly, plaintiff offered this instruction so that the jury would know that it is the law that the plaintiff may recover from the defendant if the defendant was negligent and his negligence was a proximate cause of the damage, even though a third person may also have been negligent. Lake v. Emigh, 121 Mont. 87, 190 P.2d 550. The above instruction was taken directly from the Montana Jury Instruction Guide and is a proper instruction to use in a case in which a person who is not a party to the action may be guilty of concurrent negligence.

The instruction was offered to prevent the possibility that the jury might think Hamilton had also been negligent and such negligence should prevent recovery by the plaintiff. The issue of whether Hamilton was or was not negligent could not properly be considered by the jury for the following reasons.

Any negligence on the part of Hamilton, as the driver, cannot be imputed to Smith, the owner, unless Hamilton was acting as the agent of Smith. It is the general rule that negligence of the driver, even though a minor, cannot be imputed to the owner of the car, so as to preclude the owner's recovery against an allegedly negligent third person for damages to the vehicle, unless the driver was acting as the agent or employee of the owner. 1 Blashfield Auto Law 3rd Ed., § 62.6, p. 452.

Here, the only possible relationship of Smith to Hamilton is that of family, in that Hamilton was Mrs. Smith's nephew. This Court stated in Clawson v. Schroeder, 63 Mont. 488, 499, 208 P. 924, 927, as follows:

'We are of opinion, and express the rule in this state, that the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained by its operation by the owner's minor son, while operating the same on a public street or highway in furtherance of the son's own business or pleasure. The fact that the son had the father's special or general permission to use the car is wholly immaterial.'

In Clawson this Court also quoted the general rule concerning liability of one member of a family for another's acts from section 901, Babbitt on the Law Applied to Motor Vehicles, 2d ed. by Blackmore:

"The essence of the doctrine of respondeat superior is that of agency. The relation of parent and child, or husband and wife, or other family connection, unaccompanied by the contractual relation of employer and employee, is not sufficient to create responsibility on the part of the one for the act or omission of the other." (Emphasis added)

In Clawson this Court rejected the family purpose doctrine, which holds the owner of a family vehicle liable for the negligence of a member of the family. It was rejected again in Castle v. Thisted, 139 Mont. 328, 363 P.2d 724, and we reject it in the instant case. Any possible negligence on the part of Smith's wife's nephew cannot be imputed to Smith without showing an agency relationship. No such facts are found in this case.

To the contrary, here Hamilton was driving the car in pursuit of a project that could bring gain only to him. Smith knew nothing about it and had no connection with it. In addition, it was Mrs. Smith who loaned Hamilton the car, and although the issue has not been raised by the parties, we question whether this action of Mrs. Smith can bind Mr. Smith, in the absence of proof of any agency relationship.

In view of our discussion above, we hold that under no theory of the facts presented in this case could Smith be held liable for the negligence of Hamilton. Accordingly, any negligence on the part of Hamilton cannot be imputed to Smith to prevent him from recovering from Babcock, if the evidence shows Babcock negligent. The trial court erred in failing to give plaintiff's proposed instruction No. 6.

The second question on appeal is whether the trial court erred in denying plaintiff's motion for a directed verdict at the close of evidence on defendant's counterclaim for damages against plaintiff, and further, was it error to give instruction No. 18; This question concerns the issue of whether the plaintiff was negligent in intrusting his automobile to Hamilton.

Defendant contends that the record raises enough doubts...