Whitelock v. Dennis

• Decision Date: 02 December 1921
• Docket Number: 42.
• Citation: 116 A. 68,139 Md. 557
• Parties: WHITELOCK v. DENNIS.
• Court: Maryland Court of Appeals

116 A. 68

139 Md. 557

WHITELOCK v. DENNIS.

No. 42.

Court of Appeals of Maryland

December 2, 1921

Appeal from Circuit Court, Wicomico County; Joseph L. Bailey and Robt. F. Duer, Judges.

Action by Berry Dennis against William A. Whitelock. Judgment for plaintiff, and defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, and OFFUTT JJ.

Benjamin A. Johnson, of Salisbury (Long & Johnson, of Salisbury, on the brief), for appellant.

Amos W W. Woodcock, of Salisbury (Woodcock & Webb, of Salisbury, on the brief), for appellee.

BOYD C.J.

This is an appeal from a judgment rendered in favor of the appellee against the appellant for damages resulting from the alleged negligence of a minor son of the defendant (appellant) in driving an automobile owned by the defendant. The only bill of exceptions in the record is one presenting the rulings on the prayers, two of which were granted with amendments for the plaintiff, and five out of six offered by the defendant were rejected. But the principal and important question is whether the defendant was liable for the negligence of his son, Dryden Whitlock, who was 18 years of age, under the circumstances shown by the record.

The facts are that the defendant was the owner of a Buick automobile; that on October 30, 1920, he agreed with Fred Gordry to allow him to use his automobile during that afternoon, and delivered the car to Gordry for use by him afterwards going to Salisbury for several hours; upon his return he learned for the first time that his son had used the car during his absence; "that he had not given him any directions to use it that afternoon, and had no idea he would use it; that when requested his son would drive the car for him, and was allowed to use it for his own purposes at times when he asked for it, and, if he desired to use the car for his own affairs and he was not at home, the son used it and he had never objected to any such use." It was during the time that the defendant was in Salisbury that the accident complained of happened.

Dryden Whitelock had a license which authorized him to operate any automobile, but he drove the one of the defendant more than any other. The defendant did not have a license, and his son was the only member of his family who had an operator's license on October 30, 1920, and he drove the car for defendant whenever he requested him to do so, but other persons also drove it for him. Dryden used the car that afternoon to get shats for the hog pen of Ollie Hitchins, who was a son-in-law of defendant. That lived in the same house with defendant and his family, but they did not live as one family. Hitchins gave Dryden a dollar for his services in getting the shats.

Although the declaration alleges that the son was driving the car for the defendant on said date, "acting in the execution of duties assigned to him by the defendant as the defendant's servant or agent," "and within the course of his employment," there is nothing in the record to sustain those allegations excepting the statement of Col. Woodcock, one of the attorneys for the plaintiff which was accepted as testimony, to the effect that Dryden told him in the presence of the defendant that he was using the car at the time of the accident to get some pine shats for his father. The defendant the son and two other witnesses testified that the shats were for Hitchins, but that was for the jury to determine.

There is a great conflict between the authorities as to the liability of a parent for the negligence of a son or daughter while driving an automobile owned by the parent, particularly if the child is a minor. Some of the cases are in irreconcilable conflict, while others can be reconciled when the facts are carefully inquired into. Whatever view we may adopt on some question, it may as well be conceded in advance that it is probable, if not certain, that there may be found decisions to the contrary. If there were merely two lines of cases, and we were called upon to determine which of the two we would follow, we would have an easier task, but the difficulty is that we may agree with one line on some points and differ with the cases in it on other points involved in them. There are, however, some rules connected with or closely related to those which can be said to be reasonably well settled by so many authorities that we can have no hesitancy in accepting them as satisfactory and proper rules to follow if not already practically determined in this state. One is thus stated in Huddy on Automobiles, § 656, p. 849:

"The mere fact that a son or daughter of the owner of an automobile was driving the machine at the time of an injury to another traveler, and that such child was guilty of negligence contributing to the injury, does not necessarily render the owner liable for the injury. It is a broad general rule in the law of torts that a parent is not liable for the wrongful acts of his children, whether they are minors or adults. In order to charge the parent with responsibility, he must be connected with the wrongful acts. Generally, it must be shown that he induced or approved the acts, or that the relation of master and servant existed between the parent and child."

The author cites many authorities in support of the text. Another is that, notwithstanding the above rule, "if the relationship of master and servant exists between them as to the driving of the machine on the occasion in question, the owner may be liable." Id. 851.

There are also many decisions to the effect that, when an automobile is purchased for the pleasure of the owner's family, the owner's liability is not necessarily dependent upon his being in it when an injury is sustained by another person owing to the negligent operation of the car, but he may be liable for the negligence of his child or other member of his family who was driving the car for the convenience or pleasure of other members of the family. That seems to be on the theory that the relation of master and servant exists between them, and that the child is engaged in the master's business. Whether the child or other member of the family is acting within the scope of the owner's business when he is running the car for his own purposes has resulted in decidedly conflicting opinions, as will be seen by cases cited in the notes on pages 857-859 of Huddy on Automobiles.

While we have fully recognized the right of owners of automobiles to use the public highways in a lawful and proper way, and fully concur with the cases which have said that an automobile is not such an inherently dangerous machine as makes the rule requiring extraordinary care of dangerous instrumentalities applicable to such a means of conveyance (2 R. C. L. 1190, and cases cited; Symington v. Sipes, 121 Md. 318, 88 A. 134, 47 L. R. A. [N. S.] 662), we have not overlooked the fact that it may become, in the hands of incompetent or careless drivers, dangerous to others using the highways, and in the running of them reasonable care must be exercised and the driver must have in mind that he does not have the exclusive right to use the highways ( Fletcher v. Dixon, 107 Md. 420, 68 A. 875; Winner v. Linton, 120 Md. 276, 87 A. 674).

In Symington v. Sipes, supra, where we held, as a matter of law, that the owner of an automobile was not liable for the negligence of his chauffeur because the latter was not at the time of the collision acting within the scope of his employment, but was using the automobile contrary to orders to which he was then subject, and exclusively for his own individual purposes, we repeated the familiar rule announced by us in previous cases that "the master is liable for the negligent act of his servant only when it is committed within the scope of the service for which he is employed," and added:

"There is nothing in the statutory law of the state relating to the use of motor vehicles that is inconsistent with the well-settled principle of the common law."

There are decisions by this court which involve the question whether the owner was liable inasmuch as the chauffeur was said to have been acting for his own purposes, and not for the business of his employer. In some of them, where the evidence was clear, we sustained the lower courts in taking the cases from the jury (Symington v. Sipes, supra; State v. Benson, 129 Md. 693, 100 A. 505), while in others it was for the jury to determine the facts which were in doubt, as may be illustrated by Stewart Taxi-Service Co. v. Roy, 127 Md. 70, 95 A. 1057.

In the note to White Oak Coal Co. v. Rivoux, 88 Ohio St 18, 102 N.E. 302, 46 L. R. A. (N. S.) 1091, as reported in Ann. Cas. 1914C, 1082, there are a great many cases cited to support the general statement that-

"In order to render the owner of an

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