Zeeb v. Bahnmaier

• Decision Date: 09 November 1918
• Docket Number: 21,115
• Citation: 103 Kan. 599,176 P. 326
• Parties: SOPHIA P. ZEEB, Appellee, v. CHARLES BAHNMAIER, Appellant, et al
• Court: Kansas Supreme Court

176 P. 326

103 Kan. 599

SOPHIA P. ZEEB, Appellee, v. CHARLES BAHNMAIER, Appellant, et al

No. 21,115

Supreme Court of Kansas

November 9, 1918

Decided July, 1918.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILES--Negligence of Adult Son--Liability of Parent. A father is not liable in damage for the torts of his adult son on the mere ground of paternity.

2. SAME--Negligence of Owner's Son--Injuries--Liability of Owner. An owner of an automobile is not liable in damages for the tort of another adult person who is in the possession of it and who has the control and management of it, on the mere ground that the owner was present when such other person although experienced in the operation of the automobile, committed a tort by momentary negligence in driving it.

3. SAME--The defendant owned an automobile which his son, an adult in business for himself, was accustomed to use for business or pleasure with defendant's permission. The son was wont to use it to drive to church. Sometimes defendant or other members of the family or all together accompanied the son. At such times the son always drove, and exclusively operated the car. On the day of the accident the son invited his parents to accompany him to church. On the return journey the son, while operating the car at a speed of two or three miles an hour, overtook and collided with a buggy through his negligent failure to give the occupants of the buggy sufficient time to get their vehicle to the side of the road, and one of the occupants of the buggy, the plaintiff, was injured. The jury specially found that the father, who owned the car, had nothing to do with its operation or control at the time of the accident. Held, that the mere fact of ownership and the mere presence of the owner at the time of the accident do not warrant a judgment for damages against the owner of the car.

R. E. Melvin, of Lawrence, for the appellant.

John J. Riling, and Edward T. Riling, both of Lawrence, for the appellee.

Dawson J. Mason, J., dissenting. Johnston, C. J., concurs in the dissent.

OPINION

DAWSON, J.:

The plaintiff recovered a judgment against the defendant for personal injuries. Plaintiff and her brother were riding in a one-horse buggy on a public road. The defendant's adult son was driving defendant's automobile, which approached the buggy from the rear. Defendant and other members of his family were in the car. The automobile overtook the buggy and, in attempting to pass, the right front fender of the car struck and crushed the left rear wheel of the buggy, causing the plaintiff to be thrown out and injured. On approaching the buggy the auto horn was sounded, but owing to a strong wind the occupants of the buggy did not hear the warning until very shortly before the collision. When plaintiff and her brother did learn of the approach of the automobile, her brother, who was driving the horse, pulled the rein to the right, but before the horse had time to draw the buggy out of the way the mishap occurred.

Defendant pleaded a general denial, contributory negligence, and that her injuries were occasioned by her own fault or that of her brother, or of both.

The evidence showed that the defendant's son, a man of mature years, was driving the car; that he was in the habit of using the car about his own affairs; and that on the day of the accident he drove the car to church, and asked his parents, defendant and wife, to go with him, and they with other members of the family did so. The son testified:

"Am doing for myself; rented farm of father on my own account; pay crop rent; am of age; accustomed to drive father's auto; drive it about my own affairs; . . . car belongs to father; . . . goes to church in it once in a while; I have sometimes invited him to go to church with me in the car; this particular Sunday I invited them to go with me; they consented and went; they had nothing at all to do with the car that day; I am somewhat of a leader in the family; father pays for gasoline, keeps up repairs; I run it; father runs it, too; Sunday of accident I invited them to go, they were my guests then."

The jury answered certain special questions:

"Q. 3. Do you find that defendant or the driver of the car were guilty of negligence or carelessness in the operation of the auto? A. Yes; the driver of the car.

"Q. 4. If you answer question 3 in the affirmative state whom you find to be guilty of carelessness or negligence? A. Both Charles Bahnmaier the owner and his son Roy Bahnmaier the driver of the car.

"Q. 4 1/2. If you answer question 3 in the affirmative state in what particulars he or they were negligent or careless? A. In this, that defendant failed to give the driver of the horse and buggy sufficient time in which to turn out.

"Q. 5. What, if anything, did the defendant or the driver of the auto fail to do in the handling of the auto that ordinary carefulness and prudence would require? A. The car was not stopped in time to avoid the accident.

. . . .

"Q. 11. Did the driver of the auto, after warning the occupants of the buggy by shouting, keep the car under reasonable and proper control? A. Had control but failed to exercise control.

"Q. 12. At what rate of speed was the auto running when it struck the buggy wheel? A. Two to three miles an hour.

. . . .

"Q. 16. What, if anything, had the defendant to do with the operation or control of the auto on the day of the accident and at the time thereof? A. Nothing."

Several errors are assigned, but the important question is whether the law attaches a liability to ownership of an automobile for damages occasioned by the machine, which occur when the owner is present, but only as a passenger, and when another responsible person is operating the car in accordance with his own judgment and without directions from the owner. On this question the trial court instructed the jury thus:

"I think one of the first questions that will challenge your consideration will be the extent to which Charles Bahnmaier, the owner of this automobile, the father of this boy [adult] is liable for the negligence of his son under the circumstances of this case. As to that, I have to advise you that a father is not liable for the negligence of his son, either an adult or a minor, if the son is acting away from the father, and independently acting for himself; but if the son, either a minor or an adult, is acting for the father, operating the automobile in the usual and ordinary way, doing the things with the automobile that the father himself might do if the son were not present, then I think you will be warranted in saying that if the son was negligent, the father would be liable for damages growing out of the negligence. More than that, I think if the father was present in the automobile with the son, and the son was engaged in an act of negligence and the father saw it and took no steps to prevent it and it was his automobile, the father would be liable for any damages growing out of the negligence of the son."

The law imposes no liability on a father for the tort of his son on the mere ground of paternity. This is the law even where the tort is that of a minor son (Mirick v. Suchy, 74 Kan. 715, 87 P. 1141; Smith v. Jordan, 211 Mass 269, 97 N.E. 761). Unless some rational theory of principal and agent, or of master and servant, supported by substantial evidence,...