Tapscott v. Tyson

• Decision Date: 14 June 1915
• Docket Number: No. 11580,11580
• Parties: TAPSCOTT v. TYSON.
• Court: Missouri Court of Appeals

177 S.W. 815

191 Mo. App. 253

TAPSCOTT v. TYSON.

No. 11580

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by W. C. Tapscott against Marvin Tyson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

T. J. Hackler, of Lees Summit, and L. T. Dryden, of Independence, for appellant. Hamilton & Thice, of Independence, for respondent.

ELLISON, P. J.

This is an action for damages alleged to have resulted to plaintiff by reason of the negligence of defendant's son in driving the defendant's automobile. The judgment in the trial court was for the plaintiff in the sum of $2,000, being the full amount asked by him in his petition.

It was shown by the evidence in plaintiff's behalf that defendant, a farmer, was the owner of an automobile, which he kept for the use of himself and family. That his minor son, 19 years of age, was a member of the family and drove the machine for himself, and also generally did so when any of the family were using it. A young lady acquaintance of the family lived in the same neighborhood, and the son frequently escorted her to places in the neighborhood. On the day in question, the son had an engagement with the young lady to take her to church; the arrangement being that he would drive the machine over after her, come back by his home, take in his father and mother and other members of the family, and all go to church together. On returning from church, when they got near home, the family got out and walked to the house, while the son proceeded with the young lady to her home. At this time plaintiff, a young unmarried man, and a young lady friend were a distance up the road in a one horse buggy, driving in the opposite direction. They saw the machine approaching, and turned out to the side of an embankment and stopped, the young man calling out to stop the machine. But It seems he was not heard, or, at least, not heeded, and the machine ran against a wheel of the buggy, the horse became frightened, the buggy was turned over, and plaintiff suffered painful injuries. At this point, considerable space in the record is occupied about what was said and done by tie parties, the injury to plaintiff, his horse, harness, and buggy, etc., which we need not notice further than to say there was enough evidence to support a finding of negligence on part of defendant's son.

The action is based on the theory that the defendant is liable for the negligence of his son. In Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, where a minor son asked and obtained the consent of his father to take a party of his young friends out riding in an automobile the father kept for himself and his family, we held the father liable for the negligence of the son in colliding with a buggy being driven along a street. That case is relied upon by the plaintiff in this case. It has been cited several times in the courts of other states. It is quoted from at length and fully approved by the Supreme Court of Kentucky in Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224. It is doubted in McNeal v. McKain, 33 Okl. 449, 455, 126 Pac. 742, 41 L. R. A. (N. S.) 775, and strongly condemned by the Supreme Court of Alabama in Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. IL A. (N. S.) 87, 90, add, though not cited, the rule announced therein is disapproved in Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946, and Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St....