Walker v. Klopp
| Decision Date | 29 April 1916 |
| Docket Number | 18673 |
| Citation | 157 N.W. 962,99 Neb. 794 |
| Parties | WILLIAM H. WALKER, APPELLANT, v. A. THOMAS KLOPP, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.
REVERSED.
McGilton Gaines & Smith, for appellant.
Byron G. Burbank, contra.
The plaintiff brought this action to recover from the defendant the sum of $ 6,000, as damages to the automobile and person of the plaintiff, occasioned by the reckless driving of the defendant's automobile by his son, Lester Klopp, a minor under 16 years of age. In his petition the plaintiff alleged, in substance, that on September 20, 1913, he was driving his car toward the east on Underwood avenue, west of the village of Dundee, and that on said date Lester Klopp, a minor under 16 years of age, was driving defendant's car, with defendant's permission and consent, and negligently and recklessly, while driving said car at a speed exceeding 40 miles an hour, ran into the plaintiff and destroyed his automobile and permanently injured his person; that the damage to plaintiff's automobile was in the sum of $ 1,000, and that he suffered permanent physical injuries and was thereby damaged in the further sum of $ 5,000. The defendant by his answer admitted the ownership of the car, and that Lester Klopp, his son, was a minor, and denied each and every other allegation in plaintiff's petition contained. At the close of plaintiff's evidence the court, on motion, directed a verdict for the defendant. On the verdict of the jury, the court rendered judgment in favor of the defendant, and from this judgment the plaintiff appeals and asks that the judgment be reversed, on the ground that the trial court erred in directing a verdict for defendant.
The only question presented to this court for determination is whether or not the evidence is sufficient to sustain a judgment for the plaintiff. There is evidence that the defendant was the owner of a seven-passenger Olds automobile of 50-horse power; that, for a considerable period of time previous to the accident which caused the damage to the plaintiff and his property, Lester Klopp, the defendant's minor son, who was under the age of 16 years, had been driving the defendant's said automobile about the streets of Omaha, and upon other public highways, with the general permission, knowledge and consent of the defendant; that the defendant's attention had been called to the fact that, by permitting his said infant son to drive his automobile on the public highways, he was violating the law, and that he stated that he proposed to let his son drive his automobile anyway. At the time of the accident the plaintiff was driving his car toward the east on Underwood avenue, and had reached a point on the intersection of Underwood avenue with the boulevard which crosses Underwood avenue, and was going at a speed of eight miles an hour. There is evidence that the defendant's son was driving the defendant's car toward the north on the boulevard at a speed of about 45 miles an hour, and collided with the plaintiff's car on the intersection; that the plaintiff's car was almost entirely destroyed, and the plaintiff and a man who was riding with him were thrown out of the car upon the ground. There is also evidence that the defendant's son had frequently, and for a long period of time previous to the accident, and after the accident, driven the defendant's automobile upon the streets of the city of Omaha, with the knowledge and permission of the defendant. This evidence was competent as proof that at the time of the accident the defendant's minor son was operating and driving defendant's automobile with the consent of and by the permission of the defendant. If the defendant, by reason of having permitted his son, who was at the time under 16 years of age, to operate and drive his automobile upon the streets and public highways, is liable to the plaintiff for the damages so sustained by him, the trial court erred in directing a verdict for the defendant. The answer to this question involves a construction of section 3048, Rev. St. 1913, which provides as follows:
"It shall be unlawful for any person under sixteen years of age, or for any intoxicated person, to operate a motor vehicle, and any owner, dealer, or manufacturer of motor vehicles who permits a person under sixteen years of age, or an intoxicated person, to operate a motor vehicle shall be deemed guilty of a misdemeanor and shall be punished as hereinafter provided for violation of the provisions of this article."
Counsel for defendant contends that it is a fundamental principle that acts penal in themselves, that is, acts creating a misdemeanor or a crime, and providing punishment therefor shall be strictly construed, and shall not be extended beyond the strict letter and spirit thereof; that, had the legislature contemplated anything further than punishment by a fine or imprisonment, it would have so declared in the act, by adding thereto language clearly stating that damages...
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