Wilcox v. Herbst

Decision Date10 April 1956
Docket NumberNo. 2717,2717
Citation75 Wyo. 289,295 P.2d 755
PartiesRoy L. WILCOX, and Roy L. Wilcox as the next friend of John Wilcox and Gary Wilcox, Plaintiffs and Respondents, v. Frank J. HERBST, Defendant and Appellant.
CourtWyoming Supreme Court

Smith & Nicholas and William J. Nicholas, Lander, for appellant.

No appearance for plaintiffs and respondents.

PARKER, Justice.

John Wilcox, sixteen, accompanied by his fourteen-year-old brother, was driving the car of his father, Roy L. Wilcox, on a Fremont County road after dark on the night of July 6, 1953, when the car struck the horse of defendant Frank J. Herbst, damaging the automobile, injuring the driver, his brother the passenger, and the horse. The father sued Herbst (a) for damage to the car and (b) as next friend for the damages caused by the injuries to each of the sons. Herbst cross-petitioned for the injury to the animal. The trial court found that the negligence of John Wilcox and Frank J. Herbst proximately caused the accident, but as a matter of law that the negligence of the son-driver could not be imputed to the father, and therefore entered judgment for the father, Roy L. Wilcox, against defendant Frank J. Herbst for the sum of $845 and costs. (No judgment was entered on the claim of John Wilcox or Gary Wilcox, plaintiffs, or the counterclaim of Frank J. Herbst, defendant; but in view of the findings of negligence, it was apparently intended that the judgment be considered to be against the claims of each of these parties.)

From this judgment, defendant has appealed, raising three contentions:

(1) That the negligence on the part of the eldest son, driver of the motor vehicle, should bar the damages occasioned to the owner, the driver's father.

(2) That the proof of the damages was insufficient to sustain the judgment.

(3) That a person leading horses on a highway has no duty to display a warning light and failure to do so is not negligence.

We shall discuss the points raised by defendant in the order listed.

Defendant seriously urges that the negligence of a son-driver is imputable to a father-owner. His arguments are ingenious and would be convincing, did he but cite authority for his views. He points out that if the judgment is allowed to stand the results will be 'a distortion of principles and an absurd ramification of good law.' He says that:

'* * * If a family owns two cars, one of which is usually driven by the wife, and one of which is usually driven by the husband, it would be wise for the car usually driven by the husband to be owned by the wife, and the car usually driven by the wife to be owned by the husband. In such event, notwithstanding that one spouse might be negligent in causing an accident and damage to other persons, so long as there was any evidence of negligence on the behalf of the third persons, the other spouse owning the car would recover therefor, and the total loss of money to the family would be minimized.'

He applies this same principle to business and to various other situations.

Perhaps there are answers to this point of view which might have been highlighted had plaintiff chosen to appear with counsel and present either brief or oral argument in this court. It is unnecessary to speculate on that subject since defendant cites no law as basis for his position. Instead, we shall discuss generally the state and current trend of the law relating to a bailee's contributory negligence as a defense to a bailor's action. We shall also consider two ramifications of this subject, the imputation of the negligence of a spouse-driver to a spouse-owner, and the imputation of the negligence of a minor-driver to a parent-owner. It will be noted that there are numerous cases and considerable discussion on the general subject but little precedent dealing with facts identical to the situation at hand.

The basic rule on the subject is given in 6 Am.Jur., Bailments § 310, which states the former rule that:

'* * * the bailee's negligence may be imputed to the bailor so as to defeat his recovery, where it contributed to the injury or loss of the bailed property for which the action is brought.'

but goes on to say:

'There has been a change in the weight of authority on this question. Formerly it was, numerically at least, in favor of the view that if the bailee or his servant, through negligence, contributed to the injury of goods in his hands, such negligence was imputable to the bailor, so as to prevent a recovery by him from a third person whose negligence, combined with that of the bailee, caused the injury; and this view is still adhered to in some jurisdictions. [Rose v. Baker, 138 Tex. 554, 160 S.W.2d 515; Langford Motor Co. v. McClung Constr. Co., Tex.Civ.App., 46 S.W.2d 388.] * * *

'The more recent cases, however, have manifested such a trend in the contrary direction that now the decided weight of authority favors the opposite rule, namely, that the bailee's contributory negligence is not imputable to the bailor in the latter's action against a third person for injury to, or destruction of, the subject of the bailment. The cases supporting this view proceed on the ground that when one has been injured by the wrongful act of another to which he has in no way contributed, he should be entitled to compensation from the wrongdoer unless the negligence of someone toward whom he stands in the relation of principal or master has materially contributed to the injury, and that it is well settled that the bailor bears no such relation to the bailee.'

To the same effect is another subject in this encyclopedia, 5 Am.Jur., Automobiles § 493:

'In accord with the modern rule that a bailee's contributory negligence is not imputable to the bailor in the latter's action for an injury to, or destruction of, the subject of bailment, the contributory negligence of one to whom an automobile is loaned by its owner and who is using it for his own pleasure or benefit is not imputable to the owner so as to prevent the latter's holding another liable for negligently injuring the car, unless the owner retains some direction or control over the action of the bailee. * * *'

citing Annot., 6 A.L.R. 316 with a supplement in Annot., 30 A.L.R. 1248, both of which clearly set forth the change in the weight of authority on this question.

Cases on the general subject are found digested in Volume 34 of the Fifth Decenial Digest (1936 to 1946), Negligence, k90, among which are the following: Gagle v. Heath, 114 Ind.App. 566, 53 N.E.2d 547 (holding daughter-driver's negligence not imputable to father-owner); Weitkam v. Johnston, La.App., 5 So.2d 582; La.App., 6 So.2d 54 (holding no recovery by father when daughter was driving car, because of agency); Tibbetts v. Harbach, 135 Me. 397, 198 A. 610 (holding wife's negligence not imputable to husband to prevent recovery for damage to car); Leveillee v. Wright, 300 Mass. 382, 15 N.E.2d 247 (holding negligence of driver of loaned automobile not imputable to owner to prevent recovery for damage to car); Darian v. McGrath, 215 Minn. 389, 10 N.W.2d 403 (holding fact that plaintiff and driver were husband and wife did not of itself create relationship of master and servant or principal and agent); Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406, 147 A.L.R. 945 (holding negligence of bailee not imputable to bailor; Lubell v. Annunziata, Sup.App.T., 9 N.Y.S.2d 100 (holding owner of automobile used with his consent in his absence and not in his business may recover for negligence of third person damaging automobile despite borrower's negligence); Strouse v. Baltimore & O. R. Co., 76 Ohio App. 327, 64 N.E.2d 257 (holding negligence of husband-bailee is not imputable to wife-bailor); Cranston v. Railway Express Agency, 237 Wis. 479, 297 N.W. 418 (holding, in action for damage to plaintiff's automobile resulting from collision, there is no question of contributory negligence where plaintiff's automobile was driven by plaintiff's wife, bailee).

Probably the strongest general statement on the subject is found in 4 Blashfield, Cyclopedia of Automobile Law and Practice (1946) § 2865:

'The modern rule, supported by the weight of authority, is that the negligence of a bailee in the use of the subject of the bailment such as an automobile contributing to its injury cannot be imputed to the bailor, so as to preclude recovery by the latter for the negligence of a third person also constituting a proximate cause of the injury, unless such bailor and bailee also sustain the relation of employer and employee, or of principal and agent, or a partnership, or family relation exists, and not then unless the bailee is acting within the scope of his employment.'

This text among other cases cites Gagle v. Heath, supra, in which the daughter was driving the car. Unfortunately, the Indiana court does not discuss the particular relationship of parent and child or the underlying reasoning on which the decision is based but summarily disposes of the situation, 53 N.E.2d at page 548, by quoting Lee v. Layton, 95 Ind.App. 663, 167 N.E. 540, 541:

"* * * the weight of authority in the later cases is decidedly in favor of the rule that the contributory negligence of the bailee is not imputable to the bailor so as to preclude his recovery of damages from a third person for negligently injuring the bailor's property. * * *"

We are well aware of the equities favoring defendant and heretofore mentioned in an article entitled 'Imputed Contributory Negligence in Automobile Bailments,' 82 University of Pennsylvania Law Review (1933-34), pp. 213-229. Mr. Reno in that article discusses the majority and minority views, the effect of the Family Purpose Doctrine on holdings in these cases, the social necessity of establishing vicarious liability of the bailor by legislation, and indicates the difficulty of courts in attempting to undertake such legislation as their own responsibility.

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