Smith v. Nealey

• Decision Date: 16 April 1931
• Docket Number: 22696.
• Citation: 298 P. 345,162 Wash. 160
• Parties: SMITH v. NEALEY et ux.
• Court: Washington Supreme Court

298 P. 345

162 Wash. 160

SMITH v. NEALEY et ux.

No. 22696.

Supreme Court of Washington

April 16, 1931

Department 2.

Appeal from Superior Court, Spokane County; Charles H. Leavy, Judge.

Action by W. H. Smith, as guardian ad litem of Marybelle Smith, a minor, against Matt Nealey and wife. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

BEALS J., dissenting.

R. L. Campbell, of Spokane, for appellant.

Kimball & Blake, of Spokane, for respondents.

BEELER J.

This is an action for personal injuries tried by a jury. At the conclusion of the plaintiff's testimony the defendants challenged its legal sufficiency and moved for judgment of dismissal. This motion was sustained by the court, and from the judgment which followed, the plaintiff appealed.

The facts are: Appellants and respondents both reside in the small town or village of Plaza, Wash. Respondents are husband and wife, and prior to and on the 21st day of October, 1928 owned an automobile which was used as a family car. On the morning of that day respondent Matt Nealey and a few of his friends contemplated going hunting a short distance south of the town of Plaza, and accordingly he placed his loaded Winchester repeating sawed-off shotgun on the rear seat of the automobile and directed his thirteen year old son Harvey to drive the car to a point about one mile south of the town of Plaza in front of 'Gilhause's.' In obedience to this instruction, Harvey shortly thereafter proceeded to drive the car to the place designated by his father, and as he came within a short distance thereof he stopped at a cross-roads to wait for his father, who apparently was following a creek near the roadway. In looking back Harvey observed a fire in the town of Plaza and thereupon turned the automobile about, drove back to the town and near to a house which was on fire, and just as he drove up appellants' young daughter, Marybelle Smith, aged fourteen years, came out from the rear entrance of the house in a dressing gown and in a very excited manner screamed 'fire,' and on observing Harvey, whom she knew, ran towards the automobile, which in the meantime had come to a stop. Harvey opened the front door of the car and invited her to have a seat alongside him, but being thinly clad she demurely hesitated, and thereupon Harvey opened the rear door and the girl stepped into the rear seat, and Harvey in putting the car into motion gave it a quick lurch thereby throwing the girl backward and in some way tossed her feet into the air, at which time the gun was discharged, with the result that her left foot was partially shot off and she was severely injured.

At the conclusion of appellants' testimony, the court dismissed the action on the theory that the evidence failed to establish the relation of principal and agent between the father and the son. But the lower court overlooked a vital issue in the case: Whether it was negligence for the father who had placed the loaded shotgun in the rear seat of his automobile, to intrust the car in the hands of his thirteen year old son, Harvey. This issue or question should have been submitted to the jury. Courts almost universally hold that it is negligence per se for the owner to intrust his automobile to a minor under the age designated by statute for purposes of operation. Repczynski v. Mikulak (Ind. App.) 157 N.E. 464; Paschall et al. v. Sharp, 215 Ala. 304, 110 So. 387; Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A. L. R. 1156, and annotated note.

The above authorities are bottomed on the theory that a person within the prohibitive age is presumed to be incompetent to drive an automobile unaccompanied by an adult. The liability of a parent who intrusts an automobile to his child rests, not upon the relation of parent and child, nor necessarily upon that of principal and agent, but upon the negligence of the parent by intrusting the car in the hands of the child and thereby aiding in making it possible for the child to cause the injury. This principle has been recognized and applied by this court in the case of Mitchell v. Churches, 119 Wash. 547, 206 P. 6, 8, 36 A. L. R. 1132. There we held that the owner of a car was liable in permitting its use by one known to be incompetent. We said:

'We consider it not only common sense, but common law and justice, that one cannot let or loan to another, knowing that other to be reckless and incompetent, and in such a condition that he would be reckless and incompetent, an instrumentality which may be a very dangerous one in charge of such a person. Berry on Automobiles (3d Ed.) § 1040, states the rule to be:

"Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habits of recklessness, is incompetent to safely operate the machine.

"An automobile is a machine that is capable of doing great damage if not carefully handled, and for this reason the owner must use care in allowing others to assume control over it. If he intrusts it to a child of such tender years that the probable consequence is that he will injure others in the operation of the car, or if the person permitted to operate the car is known to be incompetent and incapable of properly running it, although not a child, the owner will be held accountable for the damage done, because his negligence in intrusting the car to an incompetent person is deemed to be the proximate cause of the damage.

"In such a case of mere permissive use the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner and driver; negligence of the owner in intrusting the machine to an incompetent driver, and of the driver in its operation."

Particularly should this be the rule where the one to whose charge the car is committed is prohibited from operating it by statute. Section 6315, Subd. 1, Rem. Comp. Stat., provides: 'It shall be unlawful for any person under the age of fifteen (15) years to operate or drive any motor vehicle upon the highways of this state,...