Stumpf v. Montgomery

Decision Date25 March 1924
Docket Number11841.
Citation226 P. 65,101 Okla. 257,32 A.L.R. 1490,1924 OK 360
PartiesSTUMPF ET UX. v. MONTGOMERY.
CourtOklahoma Supreme Court

Rehearing Denied April 22, 1924.

Syllabus by the Court.

The liability of a parent for the tort of a minor child rests upon the same basic facts as the liability of a master for the acts of his servant.

In an action against the owner of an automobile to recover damages for an injury inflicted by the negligence of the minor child of such owner, in driving the automobile, the plaintiff is not entitled to recover, unless the injuries were the proximate result of the negligence of the driver and unless such driver was the agent or servant of the defendant and was at the time of the accident acting within the scope of his employment or agency.

Evidence of defendant's ownership of the car, coupled with proof that the driver was in his employment, raises the legal presumption that, at the time of the accident, the driver was acting for the owner and within the scope of his employment and the burden of proof is then placed on the defendant to prove that, at the time of the accident, the driver was not acting for him, but was using the machine for his own purposes or outside the scope of the employment.

Proof that the defendant owned the car and that it was being driven by the child of the defendant, with his consent, at the time of the accident, is not sufficient to raise the presumption that the child was acting as the agent of the father and within the scope of his authority, thereby shifting the burden upon the father to prove the contrary. To do this would require the court to enforce one presumption upon another, to wit: (1) That the son was the agent of the father; and (2) that the agent was acting within the scope of his authority. A presumption must be based upon an evidentiary fact and not upon another presumption. Before the negligence of the child will be imputed to the father, it is necessary to prove that the father was the owner of the car and that the relation of master and servant existed between the child and the parent, which proof raises a presumption that, at the time of the accident, the driver was acting for the parent and within the scope of his authority.

The "presumption" above mentioned should not be confused with a mere "inference," which is sometimes referred to as a presumption of fact. An "inference" is a permissible deduction from the evidence, and in dealing with inferences the jury is at liberty to find the ultimate fact one way or the other as it may be impressed by the testimony, and the reasonable and permissible deductions therefrom. Inferences have no significance as to the duty of either party to produce evidence, and the jury may give to inferences whatever force or weight it thinks they are entitled to. A "presumption," in the true sense, that is, a legal presumption, is in its characteristic feature a rule of law laid down by the judge, and attaching to evidentiary facts certain procedural consequences as to the duty of production of other evidence by the opponent. If the opponent does offer evidence to the contrary, the presumption disappears and the case stands upon the facts and the reasonable inferences to be drawn therefrom.

Where a servant, with the master's consent, takes the latter's car, and, while using it for his own purposes negligently injures a person, the master is not liable.

The owner of an automobile, who has purchased the same for the use and pleasure of himself and family, is not liable to third persons for injuries sustained in its operation by his daughter. in furtherance of her own business and pleasure and the fact of special or general permission to use the car is wholly immaterial.

Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Suit by Alvis B. Montgomery, a minor, by W. A. Montgomery, his next friend, against J. M. Stumpf and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Under Comp.St.1921, § 8041, 10 Okl.St.Ann. § 20, the liability of a parent for the tort of a minor child rests upon the same basic facts as the liability of a master for the acts of his servant.

Embry, Johnson & Tolbert, of Oklahoma City, for plaintiffs in error.

Everest, Vaught & Brewer, of Oklahoma City, for defendant in error.

COCHRAN J.

This suit was brought by W. A. Montgomery, as the next friend of Alvis B. Montgomery, a minor, to recover damages from Julius M. Stumpf and Mary Stumpf, for injuries received by Alvis B. Montgomery, on May 2, 1919, when he was struck by an automobile belonging to the plaintiffs in error and which was being driven by Jewel Stumpf, their daughter Judgment was rendered for the plaintiff against both defendants for $6,500, from which judgment the defendants have appealed. The parties will be referred to herein as plaintiff and defendants as they appeared in the trial court. The question of liability on account of permitting an automobile to be driven by an immature and inexperienced driver was not involved in the case, but the case was tried upon the theory that Jewel Stumpf was operating the car as the agent of the defendants, and that she was driving the same within the scope of her authority as such agent at the time the injury was inflicted on the plaintiff. At the time of the accident, Jewel Stumpf, together with a girl friend, was driving the car along Classen Boulevard in Oklahoma City. At Twenty-Second street she ran the car out of the street onto the parking, where the plaintiff was standing, thereby inflicting serious and permanent injuries on the plaintiff. There is no doubt about the negligence of the driver of the car in the operation of the automobile at the time of the accident, but in this case the plaintiff seeks to recover from the defendants, who were the owners of the car and the parents of the driver. It is conceded that there is no liability on a parent as such for the tort of a child. Section 8041, C. S. 1921; Rawley v. Com. Oil Co., 88 Okl. 29, 211 P. 74. The liability of a parent for the act of a minor child rests upon the same basic facts as the liability of a master for the acts of his servant. It is contended by the defendants that the evidence in this case is insufficient to support the verdict, and that a directed verdict should have been given by the trial court. The plaintiff presents the insufficiency of the evidence to support the verdict under two general heads, which we will follow in this opinion. The case is first presented on the theory that there is sufficient evidence to establish the fact that the car was being driven by the agent of the defendants acting under express authority and within the scope of that express authority, without resorting to the "family purpose doctrine" at all. In the second place, the "family purpose doctrine" is discussed, and it is insisted that the evidence is sufficient to establish liability by reason of the fact that the car was a family car and was being driven by a member of the family for her pleasure at the time of the accident.

The evidence of the plaintiff tended to prove that, shortly after the accident occurred, Jewel Stumpf, the driver of the car, made the following statement:

"Oh, God! If I have killed that boy, Father will never let me drive the car again. My father sent me down to the shop after the car and told me to bring it home, and instead I went to Westwood."

The testimony of the plaintiff further tended to prove that Mrs Stumpf stated to Dr. Harbison, in talking to him about the accident, that she had phoned for her daughter to bring the car out to the home. The testimony of Julius Stumpf and his daughter, Jewel Stumpf, was that the car was taken from the garage by the daughter without the knowledge or consent of either of the parents. The daughter testified that she took the car out of the garage and drove it home, expecting to trade it to her mother for another car, which she was permitted to drive, and after waiting some time for her mother to return home, and the mother failing to return, she took the car and started out to Westwood with a girl friend on a mission of her own. It is the contention of the defendant Julius Stumpf that the statement made by his daughter was inadmissible for the purpose of establishing that his daughter was acting as his agent in driving the car. On the part of the plaintiff, it is contended that the testimony was admissible as part of the res gestæ. Without passing on whether this statement was part of the res gestæ and admissible as such, it may be conceded by us that the evidence was admissible and was sufficient to establish the fact that the car was taken out of the garage under the instruction of Julius Stumpf to take it to his home. It may also be conceded that the statements made by Mrs. Stumpf were sufficient to establish the fact that the car was taken out of the garage under instructions from her to her daughter to bring the car to the home. In either case the authority given to the daughter was to take the car from the garage to the home, and there would be no liability unless at the time of the accident the driver of the car was acting within the scope of this authority. The uncontradicted evidence was that the car had been taken from the garage to the home, and, after the daughter had waited some time for her mother to return, she took the car for a drive out to Westwood to the aviation field for the purpose of viewing the flights at that place. There is no evidence in any manner tending to prove that Jewel Stumpf was taking the car to the family home at the time of the accident, and no testimony to contradict her testimony that she had already taken the car to the home and at the time of the...

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