Steele v. Age's Adm'x

• Decision Date: 28 March 1930
• Parties: STEELE v. AGE'S ADM'X.
• Court: Kentucky Court of Appeals

26 S.W.2d 563

233 Ky. 714

STEELE v. AGE'S ADM'X.

Court of Appeals of Kentucky

March 28, 1930

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by James M. Age's administratrix against Mary E. Steele. Judgment for plaintiff, and defendant appeals. Affirmed.

O'Neal & O'Neal and Fred Forcht, all of Louisville, for appellant.

Lukins & Jones, of Louisville, for appellee.

STANLEY C.

On the afternoon of May 14, 1927, an automobile owned by the appellant, Mrs. Mary Steele, while being driven at a reckless speed, collided with an automobile of B. De Rossett at the intersection of Eighteenth and Jefferson streets, in Louisville. As a result the car was precipitated onto the sidewalk, where it struck James M. Age and inflicted injuries which caused his death on the same day. The two occupants of the car, Stanley P. Bush and Elmer Steele, son of the appellant, were also killed. This suit for damages was filed by Age's administratrix against the appellant, on the theory that her son was driving it and that the relation of principal and agent existed between them. The evidence does not disclose which of the young men was actually driving the car at the time; and, while attention is drawn to this fact the claim for a reversal of the judgment is rested on other grounds.

Mrs Steele is the wife of Dr. J. C. Steele, of Hazard. While temporarily residing in Louisville for the convenience of her son and daughter who were attending school there, she purchased the automobile, a Studebaker roadster, as she testified, for the use of herself and family and with the intention of giving the machine to her son when he became 21 years of age. At the time of the accident, Mrs. Steele had returned to Hazard and was living there with her family, but had left the machine stored in a public garage at Lexington because of the condition of the roads to Hazard. Her son was then attending school at Lexington and had the use of the car, apparently at his pleasure, up to about two months before the accident.

Mrs Steele knew nothing of her son being in Louisville until he called his father over the 'phone about an hour before the accident. She specifically denied that he had any authority to take the car to Louisville on this occasion or to drive it at any other time except by special permission. She testified that she had instructed the garage keeper at Lexington not to let her son have the automobile without her explicit consent on each occasion, or unless she or his father was with him; and that on two previous occasions she had granted that permission.

The service manager of the garage at Lexington testified with respect to the instructions given him concerning the use of the car as follows:

"A. Well, the car was left there; we was not to let Mr. Steele's son have the car unless we had an order from him or Mrs. Steele or one of the two was present with him. That was my instruction from Mr. and Mrs. Steele. While the car was with me, Mrs. Steele herself was the one that gave me more instructions about that than Mr. Steele.

Q. Will you state just what instructions Mrs. Steele gave? A. Not to let him have the car unless either Mr. or Mrs. Steele was with the boy, or she had called me over the 'phone or we had 'phoned her and she had given me the instruction.

Q. If she gave permission on this day for him to have the car, state what it was? A. Mr. Steele was with him at the time he came down after the roadster after we had repaired it, got it ready to go."

This was on May 11th that Dr. Steele and the boy came for the car, and since the father was along, no questions were asked. Something was said about taking the car to the Derby. The witness did not notice whether the two left in the machine together.

Just before closing his evidence, the plaintiff called the defendant, Mrs. Steele, to the witness stand and asked her the age of her son, which she stated was 20 years, 10 months, and 15 days. Thereupon her own counsel interrogated her with respect to the facts of the case within her knowledge and on these matters plaintiff's counsel cross-examined her. The facts as above outlined having thus been presented, at the conclusion of her testimony counsel for the defendant moved for a peremptory instruction, which was refused, and of this ruling complaint is made before us.

The defendant's motion for a peremptory instruction was premised on the grounds that the "family purpose doctrine" should not apply as her husband was the head of the family; the car was not a "family purpose" car; and there was no agency under the facts on the part of the driver of the automobile.

It may be said that the evidence showed that the car was purchased for the use of the defendant's family, including her son and that it was generally used for the purpose for which acquired subject to the restrictions above stated. The family purpose doctrine is founded on the relationship of principal and agent; the theory being that if one maintains an automobile or other vehicle for the general use, pleasure, and convenience of members of his family, and it is being used by one of them for that purpose when an accident occurs, the one so using the machine will be deemed the agent of the owner and to have been operating the car under the owner's authority, which may be either express or implied. In some instances the doctrine may be a very harsh one, and it has been criticized and rejected in some jurisdictions, but with us its recognition must be classed among the things decided. Lashbrook v. Patten, 1 Duv. 316; Stowe v. Morris, 147 Ky. 386, 144 S.W. 52, 39 L. R. A. (N. S.) 224; Miller v. Weck, 186 Ky. 552, 217 S.W. 904; Holland v. Goode, 188 Ky. 525, 222 S.W. 950; Doss v. Monticello Elec. L. & P. Co., 193 Ky. 499, 236 S.W. 1046; Sale v. Atkins, 206 Ky. 224, 267 S.W. 223; Thixton v. Palmer, 210 Ky. 839, 276 S.W. 971, 44 A. L. R. 1379; Rauckhorst v. Kraut, 216 Ky. 323, 287 S.W. 895; Kennedy v. Wolf, 221 Ky. 111, 298 S.W....