Stowe v. Morris

• Court: Kentucky Court of Appeals
• Writing for the Court: WINN, J.
• Citation: Stowe v. Morris, 147 Ky. 386, 144 S.W. 52 (Ky. Ct. App. 1912)
• Decision Date: 06 March 1912
• Parties: STOWE v. MORRIS.

144 S.W. 52

147 Ky. 386

STOWE v. MORRIS.

Court of Appeals of Kentucky.

March 6, 1912

Appeal from Circuit Court, Christian County.

Action by Houston Morris, by, etc., against R. T. Stowe. Judgment for plaintiff; defendant appeals. Affirmed.

John T Edmunds, Southall & Son, and Henry J. Stites, for appellant.

C. H Bush and W. T. Fowler, for appellee.

WINN J.

The appellee, Houston Morris, a child some 12 years of age, in June, 1910, while riding a bicycle, was run down and dragged by an automobile, the property of R. T. Stowe. Both the child's legs were broken, and other injuries were inflicted on him. To recover damages, he brought his action against the owner of the automobile. The jury brought in a verdict in the child's favor for $2,000, and from the judgment on the verdict this appeal is prosecuted.

It suffices to say that there was sufficient evidence before the jury to take the case to them upon the question of the negligence of the driver of the automobile. No serious complaint is made upon this feature of the case; nor is it seriously contended that the damages were excessive, or that there was any error in the admission or rejection of testimony. There is but one question of consequence in the record, and we proceed directly to its discussion.

The car, at the time of the accident, was driven by Robert Stowe the 18 year old son of the appellant. With him in the car were his sister, Miss Kathleen Stowe, a Miss Henry, who was his first cousin, and a couple of other young ladies, who were friends of his sister. Young Mr. Stowe was a deputy in the office of his father, who was the county court clerk of Christian county; but on the day of the accident young Stowe had been to the office, and finding nothing to do had left without seeing his father. Indeed, he had not seen him at all on that day, as the young man did not arise for breakfast. The father gave him no orders about the use of the car on that day; nor had anything passed between them on that day as to the son's permission or right to use it. He went for the car of his own volition, and at his suggestion his sister and the other young ladies arranged for and went on the ride with him. The car was kept by the father for the comfort and pleasure of his family, including his son and daughter. They had the right to use it as often as they liked. The father knew how to run the car; but the son generally acted as the driver. The son himself testified that he took his sister driving when he felt like it, and when he did not feel like it his father drove the machine; that he took her driving when he wanted to; that he took his mother if she wanted to go; and that the machine was used by the family for the pleasure of the family. The father testified that the young man operated the car with his permission, and had the authority and right to use it when he wanted to; that his daughter had the like right; and that it was used as a family vehicle. This brief statement gives a fairly clear understanding of the ownership of the car, its uses, and the relationship of the parties to it, and of the father and son to each other in the use of the car. This brings us to the question in the case, i. e., was the son, under the facts stated and at the time of the injury, a servant or agent of the appellant? If he was, his father is liable. If he was not, his father is not liable.

In the first place, it may be said that a considerable part of the discussion of counsel is addressed to the idea that, even though the son were generally the agent or servant of the father in the operation of the car, the father is not liable under the facts stated here, because the son was engaged at the time in an enterprise of his own--the seeking and giving of pleasure to himself, his sister, and their friends, upon an excursion of his own--in which the father had no interest, and which was not in the line or scope of the son's employment. The question ordinarily is a vital one in cases of this character; but it is of no consequence here. For the only ground upon which the father can be held answerable for this act of his son excludes the idea of an independent venture, under the facts detailed. That ground is, as contended for by the appellee, that the machine was bought and operated for the pleasure of the family; that, at the time of the accident, the son was engaged in carrying out the general purpose for which the machine was bought and kept; and that, as he took it out at the time in pursuance of general authority from his father to take it when he pleased, for the pleasure of the family and himself as a member of it--the purpose for which it had been bought--he was engaged in the execution of his father's business, i. e., the supplying of recreation to the members of the father's family.

In order that our statement may be clear, we again repeat that this is the only basis upon which it is possible to predicate the recovery against the father in the case at bar; for it is established generally that the father is not liable for the torts of the son, committed without his knowledge or authority, express or implied. Nor is it charged in the present case that the father had turned the son loose with a dangerous agency, so that the question of whether that state of fact, if proven, would have rendered the father liable is not before us. There is the single question stated. We find that the principle has been a good deal discussed in the different states within the few years that motor vehicles have been in current use. The courts are not in harmony. The question is largely a new one in...