Ulman v. Lindeman

• Decision Date: 26 December 1919
• Citation: 44 N.D. 36,176 N.W. 25
• Parties: ULMAN v. LINDEMAN.
• Court: North Dakota Supreme Court

44 N.D. 36

176 N.W. 25

ULMAN

v.LINDEMAN.

Supreme Court of North Dakota.

Dec. 12, 1919.

Dissenting Opinion, Dec. 26, 1919.

Syllabus by the Court.

The owner of an automobile kept and used for the business and pleasure of the family is liable for its negligent operation by his wife, when driven for such purposes with his knowledge and consent.

The owner of such automobile is liable for its negligent operation by a third person, directed or permitted by his wife, in her presence, to drive such automobile for purposes of the business or pleasure of the owner's family.

Appeal from District Court, Divide County; Leighton, Judge.

Action by T. M. Ulman against A. H. Lindeman. From an order sustaining a demurrer to the complaint, plaintiff appeals. Order reversed.

Christianson, C. J., and Birdzell, J., dissenting.Brace & Stuart, of Crosby, for appellant.

W. H. Sibbald, of Minot, for respondent.

BRONSON, J.

This is an appeal from an order sustaining a demurrer to the complaint. The allegations of the complaint essential for consideration herein are as follows:

“That on the 7th day of April, 1918, defendant, A. E. Lindeman, was the owner of a Ford automobile owned and kept for the use, pleasure, and recreation of himself and family; that on the 7th day of April, 1918, the wife of the defendant, Bessie Lindeman, with the knowledge and consent of defendant, together with the children of defendant and one Alice B. Thomas, was riding in said car in the public streets of the city of Crosby, N. D.; said car then being operated and driven by the said Alice B. Thomas with the knowledge and consent of defendant's wife, the said Bessie Lindeman; that the said Alice B. Thomas was incompetent to properly operate and drive said car, and wrongfully, negligently, and carelessly drove the said car upon the above-described Bowser gasoline tank belonging to plaintiff,” etc.

The pertinent question is whether such allegations state a cause of action against the defendant, the owner of the automobile, for the alleged negligence of the driver.

[1] This court has heretofore held that the owner of an automobile is liable for its negligent operation by his wife, when driven with his knowledge and consent for purposes of business or pleasure of the family. Vannett v. Cole, 170 N. W. 663. The question now involved upon the complaint herein is the liability of an automobile owner for the negligent operation of his automobile, when used for the business or pleasure of the family, when driven by a stranger, with the knowledge and consent of his wife, who, with the knowledge and consent of the owner, together with his children were then riding in such automobile.

The owner of an automobile is held to a liability for its negligent operation by one other than himself, upon principles involving the relation of master and servant, and to some extent, principles of agency.

So, when an automobile is negligently operated by a chauffeur employed by the auto owner, he is liable as master for the negligent operation by his servant. Likewise, when an auto is negligently operated by a person then directed by the auto owner to so operate in his presence, the owner is held liable for its negligent operation by such person, as the servant or agent of the owner.

Where an automobile is operated by a person not the servant or the express agent of the owner thereof, there are recognized to be three grounds upon which the owner may be held to a liability for the negligent operation of the car, viz.:

1. Where the servant of the auto owner, employed for the purpose of driving such auto, negligently chooses a stranger to operate the car in his place, the master may be held negligent in its operation by reason of such servant's negligence. Englehart v. Farrant (1897) 1 Q. B. 240; Thyssen v. Ice Co., 134 Iowa, 749, 112 N. W. 177, 13 L. R. A. (N. S.) 572, 576;Leavenworth Ry. v. Cusick, 60 Kan. 590, 57 Pac. 519, 72 Am. St. Rep. 374, 379. See Andrews v. Boedecker, 126 Ill. 605, 18 N. E. 651, 9 Am. St. Rep. 649, 651; Hill v. Winnipeg Elec. Ry., 21 Man. L. R. 442, 6 B. R. C. 691. See note, 6 B. R. C. 705; Ricketts v. Tilling (1915) 1 K. B. 644, 6 B. R. C. 683; Collard v. Beach, 81 App. Div. 582, 81 N. Y. Supp. 619. See Labatt, Master & Servant, § 2517, p. 7743.

2. Where a servant employed to drive such car directs or permits a stranger to operate such car in the master's business, and in the presence of the servant, the master may be held liable for its negligent operation upon the ground that such operation was, in fact, the servant's operation. See note, 13 L. R. A. (N. S.) 572. See cases hereinafter cited.

3. Where the servant employed to operate the automobile selects a stranger to so drive the car in his place, upon the express or implied permission or direction of the owner thereof, a liability for the negligent operation of the automobile may be fastened upon the owner by reason of the consent or permission of such owner. Mechem, 3 Mich. Law Rev. (1905) 216. See note, 45 L. R. A. (N. S.) 382;Cooper v. Lowery, 4 Ga. App. 120, 60 S. E. 1015.

[2] In this case, if the complaint states any cause of action at all, it must exist upon the second ground hereinbefore stated. The complaint does not allege that the wife of the defendant negligently selected the stranger to operate the car. There is therefore no cause of action stated under the first ground above mentioned.

The complaint does not allege that Alice B. Thomas, the stranger, operated the car with the expressed or implied permission or consent of the owner thereof. There is therefore no cause of action stated upon the third ground above mentioned.

The complaint does, however, sufficiently allege that the automobile at the time was being operated for the business of the defendant, namely, the use, pleasure, and recreation of his family; that it was being used at the time by the wife of the defendant, with his knowledge and consent; that the wife directed or permitted Alice Thomas to operate such car for the purpose of the business of its owner; that by reason of its negligent operation the accident occurred.

The question is therefore squarely presented, upon these allegations, of the liability of the owner for the negligent act of the stranger.

If, at the time of the accident, the wife of the defendant were driving the car for purposes of the owner's business (and the pleasure of the family is a business of the master), the husband would have been liable for its negligent operation. Vannett v. Cole, 170 N. W. 663; Hutchins v. Haffner (Colo.) 167 Pac. 966, L. R. A. 1918A, 1008; McWhirter v. Fuller (Cal.) 170 Pac. 417;Farnham v. Clifford, 116 Me. 299, 101 Atl. 468;McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, note, 41 L. R. A. (N. S.) 775;Ploetz v. Holt, 124 Minn. 169, 144 N. W. 745;King v. Smythe, 140 Tenn. 217, 204 S. W. 296, note, L. R. A. 1918F, 297; Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, note, 50 L. R. A. (N. S.) 59;Boes v. Howell, 24 N. M. 142, 173 Pac. 966, note, L. R. A. 1918F, 288; Crittenden v. Murphy, 36 Cal. App. 803, 173 Pac. 595;Johnson v. Smith (Minn.) 173 N. W. 675;Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994;Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443. See note, L. R. A. 1917F, 365; Hireux v. Baum, 137 Wis. 197, 118 N. W. 533, 19 L. R. A. (N. S.) 332;Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161;Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, 354;Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224;Landry v. Oversen (Iowa) 174 N. W. 255;Collinson v. Cutter (Iowa) 170 N. W. 421;Lewis v. Steele, 52 Mont. 300, 157 Pac. 575;Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322;Plasch v. Fass (Minn.) 174 N. W. 438.

Is the husband still liable, as master or upon principles of agency, where the wife, authorized to operate the car, permits or directs, in her presence and stead, that the car be operated negligently by a stranger for purposes of the business of the master?

In such or similar cases a long line of authorities have held a liability to attach to the master. In many cases this holding is based upon the reasoning that the stranger is a mere instrumentality by which the servant or agent performs his duties, a longer arm which the servant or agent wields and controls; that the master's business is being performed, therefore, by the agent or servant through the stranger in question. 6 B. R. C. 710; 3 Mic. Law Review (Mechem) 216; Geiss v. Twin City Taxicab Co., 120 Minn. 368, 139 N. W. 611, 45 L. R. A. (N. S.) 382, 386;Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970.

Thus in Booth v. Mister (1835) 7 Car. & P. 66, the master was held liable for the negligence of one who was permitted to drive a cart by the servant in the presence of such servant.

So, in Althorf v. Wolfe (1860) 22 N. Y. 355, the master was held liable where the servant secured a friend to aid him in cleaning off a roof whereby a passerby was injured.

So, in James v. Muehlebach, 34 Mo. App. 512, the master or owner of a beer wagon was held liable by reason of injuries sustained when a barrel was thrown from the wagon by a stranger with the consent of the driver, the servant. This court stated:

“If a servant in charge of his master's carriage should take a stranger with him into the driver's seat, hand him the reins, and tell him to drive it around, and an injury happened in consequence of the speed, the master must answer for the damage, for the negligence was that of his servant. But not so if the servant had quit the carriage, and substituted the stranger in charge, generally, in his stead, without the knowledge of the master.”

So again, in Simons v. Monier, 29 Barb. (N. Y.) 419, the master was held liable where a son of the servant, through his direction, set fire to brush, occasioning damage.

In Hollidge v. Duncan, 199 Mass. 121, 85 N. E. 186, 17 L. R. A. (N. S.) 982, the owner of a cart was...