Ulman v. Lindeman

• Court: North Dakota Supreme Court
• Writing for the Court: BRONSON, J.
• Citation: Ulman v. Lindeman, 176 N.W. 25, 44 N.D. 36 (N.D. 1919)
• Decision Date: 12 December 1919

176 N.W. 25

44 N.D. 36

T. M. ULMAN, Appellant, v. A. H. LINDEMAN, Respondent

Supreme Court of North Dakota

December 12, 1919

Action for damages, through negligent operation of an automobile.

From order of the District Court, Divide County, Leighton, J sustaining demurrer, plaintiff has appealed.

Reversed.

Order of the trial court reversed, with costs to the appellant.

Brace & Stuart, for appellant.

If the master authorize the servant to use an instrumentality provided by him, and the servant negligently uses it so as to cause injury to another, the master is liable therefor, if the servant, at the time, was engaged in the business of the master, but is not liable therefor if the servant, at the time, was not engaged in the business of the master, but was using the instrumentality for his own purpose. Ploetz v Holt, 124 Minn. 169, 144 N.W. 745; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A. (N.S.) 970, 146 P. 1091; McNeal v. McKain, 33 Okla. 449, 41 L.R.A. (N.S.) 775, 126 P. 742; Geiss v. Twin City Taxicab Co. 120 Minn. 368, 45 L.R.A. (N.S.) 382, 139 N.W. 611; Birch v Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59, 133 P 1020; Hutchins v. Haffner (Colo.) L.R.A.1918A, 1008, 167 P. 966; King v. Smythe (Tenn.) L.R.A.1918F, 293, 204 S.W. 296.

A father who furnishes a vehicle for the customary conveyance of the family makes their conveyance by that vehicle his affair, that is, his business, and anyone driving the vehicle for that purpose, with his consent, express or implied, whether a member of his family or another, is his agent. Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59, 133 P. 1020; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A. (N.S.) 970, 146 N.W. 1091; Lemke v. Ady (Iowa) 159 N.W. 1011; Marshall v. Taylor, 168 Mo.App. 240, 153 S.W. 527; McNeal v. McKain, 33 Okla. 449, 41 L.R.A. (N.S.) 775, 126 P. 742; Jensen v. Fischer (Minn.) 159 N.W. 827; Linde v. Browning, 2 Tenn. C. C. A. 262; Lewis v. Steel, 52 Mont. 300, 157 P. 575; Missell v. Hayes, 86 N.J.L. 348, 91 A. 322; Hutchens v. Haffner (Colo.) L.R.A.1918A, 1008, 167 P. 966; King v. Smythe (Tenn.) L.R.A.1918F, 293, 204 S.W. 296; Boes v. Howell (N. M.) L.R.A.1918F, 288, 173 P. 966.

One who maintains an automobile for the pleasure of himself and his wife, who has general permission to use it as she desires, is liable for injury negligently inflicted by her while driving the car for her own pleasure; since she is his agent in carrying out the purpose for which the car was purchased. Hutchens v. Haffner (Colo.) L.R.A.1918A, 1008, 167 P. 966; McWhitter v. Fuller (Cal.) 170 P. 417.

Where a father keeps an automobile for the general use of the family, employing a chauffeur as a driver, he is liable for its negligent operation while it is being used for such purpose. Cohen v. Borgencht, 83 Misc. 28, 144 N.Y.S. 399; Winefrey v. Lagerns, 148 Mo.App. 388, 128 S.W. 276; Moon v. Mathers, 227 Pa. 488, 29 L.R.A. (N.S.) 856, 136 Am. St. Rep. 902, 76 A. 219; McHarg v. Adt, 163 A.D. 782, 149 N.Y.S. 244; Hazzard v. Carstairs, 244 Pa. 122, 90 A. 556; Freeman v. Green (Mo. App.) 186 S.W. 1166; Ploetz v. Holt, 124 Minn. 169, 144 N.W. 745.

Where the owner's daughter was in charge of the family pleasure car, and she allowed a guest to operate, the owner was responsible for damages caused by the negligent operation of the car by such guest. Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A. (N.S.) 970, 146 N.W. 1091; Berry, Automobiles, 2d ed. § 653; Babbit, Automobiles, § 902.

It was, at least, a question for the jury whether, at the time of the accident, she was not the servant of the defendant and engaged upon the business of defendant. Kayser v. Van Nest, 125 Minn. 277, 51 L. R.A. (N.S.) 970, 146 N.W. 1091; Ploetz v. Holt, 124 Minn. 169, 144 N.W. 745; Missell v. Hayes, 86 N.J.L. 348, 91 A. 322; Clark v. Sweaney (N. C.) 95 S.E. 568.

W. H. Sibbald, for respondent.

BRONSON, J. GRACE and ROBINSON, JJ., concur. BIRDZELL, J., CHRISTIANSON, Ch. J., (dissenting).

OPINION

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. H. 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, North Dakota. 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.

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, 41 N.D. 260, 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, then 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, was 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. Engelhart v. Farrant [1897] 1 Q. B. 240, 66 L. J. Q. B. N. S. 122, 75 L. T. N. S. 617, 45 Week Rep. 179; Thyssen v. Davenport Ice & Cold Storage Co. 134 Iowa 749, 13 L.R.A. (N.S.) 576, 112 N.W. 177; Leavenworth Electric R. Co. v. Cusick, 60 Kan. 590, 72 Am. St. Rep. 379, 57 P. 519, 6 Am. Neg. Rep. 282. See Andrews v. Boedecker, 126 Ill. 605, 9 Am. St. Rep. 651, 18 N.E. 651; Hill v. Winnipeg Electric R. Co. 21 Manitoba L. R. 442, 6 B.R.C. 691. See note in 6 B.R.C. 705; Ricketts v. Tilling [1915] 1 K. B. 644, 6 B.R.C. 683, 84 L.J.K.B. N.S. 342, 112 L. T. N. S. 137, 31 Times L. R. 17; Collard v. Beach, 81 A.D. 582, 81 N.Y.S. 619. See Labatt, Mast. & S. § 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 in 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 in 45 L.R.A. N.S. 382; Cooper v. Lowery, 4 Ga.App. 120, 60 S.E. 1015.

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, 41 N.D. 260, ...