Watkins v. Clark
| Decision Date | 09 November 1918 |
| Docket Number | 21,331 |
| Citation | 176 P. 131,103 Kan. 629 |
| Parties | B. F. WATKINS, Appellant, v. JAMES M. CLARK, Appellee |
| Court | Kansas Supreme Court |
Decided July, 1918.
Appeal from Geary district court; ROSWELL L. KING, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
AUTOMOBILES--Negligent Operation by Owner's Daughter--Injuries--Liability of the Owner. The plaintiff sued the defendant for damages for personal injuries suffered in an automobile accident. The fact of the accident was not disputed. The automobile belonged to the defendant, but at the time of the accident was operated by his daughter. The defendant purchased the automobile for the use of his family. His daughter had general permission, implied at least, to use the car whenever she desired, and she used it, with her father's assent whenever it suited her pleasure. Other members of the family used it as they pleased. Held, a demurrer to the plaintiff's evidence, which disclosed nothing further in reference to the defendant's relationship to the use of the car at the time of the accident, was properly sustained.
Lee Monroe, James A. McClure, and C. M. Monroe, all of Topeka, for the appellant.
James V. Humphrey, and Arthur S. Humphrey, both of Junction City, for the appellee.
The action was one for damages for personal injuries which the plaintiff suffered in an automobile accident. A demurrer to the plaintiff's evidence was sustained, and he appeals.
The fact of the accident was not disputed. The automobile belonged to the defendant, but was operated by his daughter, a minor. The defendant purchased the automobile for the use of his family. His daughter had general permission, implied at least, to use the car whenever she desired, and she used it, with her father's assent, whenever it suited her pleasure. Other members of the family used it as they pleased. On the occasion in question the daughter was out on a pleasure trip of her own, and was accompanied by another young lady.
The foregoing facts were embraced in the opening statement of the defendant's attorney to the jury, and the plaintiff's evidence added nothing to the admitted relationship of the defendant to the car and its use.
The demurrer to the evidence was properly sustained. There was neither admission nor evidence to submit to the jury proving, prima facie or otherwise, or tending to prove, that the defendant's daughter was acting for him as agent, or servant, or in any other representative capacity, or under his direction or control, or in any joint enterprise from which agency might be implied. (Halverson v. Blosser, 101 Kan. 683, 168 P. 863.)
The automobile was not a dangerous instrumentality which the defendant let loose in the community. The automobile was not a guilty agent in the accident, bringing punishment on the owner like the deodands of English law. Mismanagement by the driver was the cause of the accident. The purchase of the automobile by the defendant for the use of his family including his daughter, operated as a gift to them of the right to use it. When using it to accomplish his purposes, whether business or pleasure, they represent him, but when they exercise their privilege and use it to accomplish their own distinct...
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