Smith v. Smith

• Decision Date: 30 April 1935
• Docket Number: (No. 8107)
• Citation: 116 W.Va. 230
• Parties: Beatrice B. Smith v. Rosa F. Smith
• Court: West Virginia Supreme Court

116 W.Va. 230

Beatrice B. Smith

v.Rosa F. Smith

(No. 8107)

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1935.

Decided April 30, 1935.

Automobiles

The owner of an automobile is liable, under the doctrine of respondeat superior, for injuries sustained by a guest as a result of the negligent acts or omissions of a driver-agent while acting as such and within the scope of his employment, regardless of the fact that the driver-agent, due to relationship to the guest, or other circumstances, may, or may not, enjoy immunity from action by said guest.

Error to Circuit Court, Kanawha County.Action by Beatrice B. Smith against Rosa F. Smith.To review an adverse judgment, plaintiff brings error.

Judgment reversed; case remanded.

Copenhaver & Boiarsky, for plaintiff in error.

T. C. Townsendand Hillis Townsend, for defendant in error.

Woods, Judge:

This is an action by a guest against the owner of an automobile to recover for injuries sustained as a result of the alleged negligence of the latter's driver-agent in the operation of the automobile.A special plea was filed setting up that the driver-agent was the infant son of the plaintiff; that negligence, if any, was that of the driver-agent; that plaintiff could not maintain an action in tort against her son for injuries incurred as in declaration alleged; and that, therefore, no action lies against the owner, as principal or master.The trial court overruled plaintiff's demurrer to the special plea, and entered a nil capiat.Plaintiff prosecutes error.

Are the allegations of the plea sufficient to bar an action against the owner?We have held that "an unemancipated infant may not maintain against his parent an action for damages for personal injury caused by the parent's negligence in driving his automobile wherein the child was a passenger."Securo v. Securo, 110 W. Va. 1, 156 S. E. 750.However, the trespass, whether negligent or wilful, does not cease to be an unlawful act, by reason of such immunity.Schubert v. August Schubert Wagon Co., 249 N. Y. 253, 164 N. E. 43, 64 A. L. R. 293.As this Court pointed out in Lusk v. Lusk, 113 W. Va. 17, 166 S. E. 538: "The rule followed in the Securocase concedes the commission of a civil wrong on the child by the parent, but palliates the wrong (in case of passive negligence) in the interest of parental discipline and control and of domestic harmony."

The special plea assumes that the owner's liability is dependent upon the agent's susceptibility to an action by the plaintiff.And, that, the child not being liable to suit, the principal, under the doctrine of respondeat superior, likewise enjoys immunity.

The doctrine of respondeat superior is based on the proposition that he who expects...