Schultz v. Morrison

Wheeler, J. This action is to recover for personal. injuries received by the plaintiff in a collision between a vehicle driven by the plaintiff, and by an automobile owned by the defendant, and operated at the time of the accident by his ‘’son. The son was a youth of the age of sixteen attending the Lafayette High School in the city of Buffalo. He was desirous of making his high school football team, and for that purpose wished to purchase a pair of shoes in which to play. He asked his mother for permission to take his father’s machine and go down town to make a purchase. She telephoned the defendant at his place of business asking if the son might use the automobile. In reply, he gave the son the necessary permission, which the mother made known to the son. He started down town with the machine, and on the way picked up three or four of his school companions. After purchasing the shoes the son started for home, and on the way back ran into the rear of the plaintiff’s wagon, throwing him from his seat into the back of the wagon. The plaintiff struck his back on a fork which lay in the wagon box, and suffered serious injuries. [250] The evidence shows a clear case of negligence on the part of the son. The. defendant, however, contends that he is not legally responsible for the son’s negligence, relying on the general rule that the owner of an automobile is not liable for the negligence of another operating such a vehicle, even though a member- of his own family. Heissenbuttel v. Meagher, 162 App. Div. 752; Maher v. Benedict, 123 id. 579; Freibaum v. Brady, 143 id. 220; Clark v. Buckmobile Co., 107 id. 120; Stewart v. Baruch, 103 id. 577; Cowell v. Saperston, 149 id. 374; McHarg v. Adt, 163 id. 782; Doran v. Thomsen, 76 N. J. L. 754. There are, however, facts in this ease which, in our opinion, distinguish it from the cases above cited, and make it an exception to the general rule. In this case the son, at the time of the accident, was but sixteen years of age. Section 282, subdivision 2, of the Highway Law provides: “ No person shall operate or drive a motor vehicle who is under eighteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated.” Notwithstanding the provisions of this section; the defendant permitted his son to operate his machine. The object and purpose of the statute is to promote the safety of those traveling the public highways. While a motor vehicle is not, in and of itself, to be deemed a dangerous machine, nevertheless it becomes such in the hands of a careless and inexperienced person. The statute has, in effect, so declared when it forbids its operation by persons under the age of eighteen. It, in substance, declares that such persons do not possess the requisite care and judgment to run motor vehicles on the public highways without endangering the lives and limbs of others. While the relation of parent and child does not render the parent [251] liable for the torts of the child, nevertheless a parent may become liable for an injury caused by the child “ where the parent’s negligence made it possible for the child to cause the injury complained of and probable that the' child would do so; this liability is based upon the rules of negligence rather than the relation of parent and child. ’ ’ 29 Cyc. 1666, citing Phillips v. Barnett, 2 N. Y. City Court, 20; Hoverson v. Noker, 60 Wis. 511; 50 Am. Rep. 381; Chaddock v. Plummer, 88 Mich. 225; 26 Am. St. Rep. 283; Doran v. Thomsen, 76 N. J. L. 754. In the disposition of this case, on the trial the court left it to the jury to determine whether, in view of the provisions of the statute prohibiting persons under eighteen to operate motor vehicles, the defendant was chargeable with negligence in permitting his son to run the car on the day in question when the accident complained of happened. In these instructions, we believe the court was clearly within well recognized principles^ of law. When the defendant permitted one of his own family, whose, acts he had the right and authority to control, to operate his car, he became a party to the violation of the statute, and should be held responsible for the consequences which followed. The force and effect of this reasoning the defendant sought to obviate by the fact, which was proven on the trial, that one of the companions which the son had picked up, and who rode with him on the way down town and back, was a licensed chauffeur, so that the son came within the exception of the statute by being accompanied by a duly licensed chauffeur. It was, however, developed by the evidence that although the companion in question was, in fact, licensed to operate a motor vehicle, he was at the time himself only of the age of sixteen years. Just how he obtained such a license from the [252] authorities did not appear. Nevertheless, he had no right to obtain or hold such a license, for section 289 of the Highway Law, providing for the licensing of chauffeurs, declares: “ No chauffeur’s license shall he issued to any person under eighteen years of age.” The defendant, while conceding that Wilson, the son’s companion, had no legal right to his license, nevertheless contends that so long as he had it unrevoked his presence in the car protected the defendant; and it is urged the regularity or validity of that license cannot be questioned or attacked collaterally, and until officially revoked remained good for all purposes. The court charged the jury that Wilson, the companion, was not a “ duly licensed chauffeur,” being but sixteen years of age, and that the possession of a license by him constituted no defense. If the court erred in this instruction the verdict should be set aside, but we are of the opinion no error was committed. We think the license he held was absolutely void, not simply voidable. The language of the statute is prohibitive. It is that: “No chauffeur’s license shall be issued to any person under eighteen years of age.” The secretary of state had no power or authority to issue it. The prohibition of the statute goes to the jurisdiction to issue. ' Subdivision 4 of section 289 provides that: “No person shall operate or drive a motor vehicle as a chauffeur upon a public highway * ■ * * unless such person shall have complied in all respects with the requirements of this section.” One of these requirements is that he shall be at least eighteen years of age. To operate a motor vehicle would render him , liable to prosecution for a misdemeanor. If Wilson had been so prosecuted could he assert as a defense that he had been “ duly licensed ” by the [253] state authorities? We think not. If he could not avail himself of such a license much less, we think, could the defendant in this action take any advantage or benefit from it. We think proper effect should be given to the language of subdivision 2 of section 282, forbidding the operation of motor vehicles by persons under eighteen unless “ accompanied by a duly licensed chauffeur,” or the owner of the vehicle operated. Certainly Wilson was not a “ duly ” licensed chauffeur. "Duly,” in legal parlance, means, according to law. It does not relate to form merely, but includes form and substance both. Brownell v. Town of Greenwich, 114 N. Y. 527, and cases cited; Young v. Perry, 42 App. Div. 249; Hollis v. Brooklyn Heights R. R. Co., 128 id. 824. As matter of fact, Wilson’s presence in the car with the defendant’s son was not for the purpose of complying with the provisions of the Highway Law. He was not riding with the son for any such purpose. His presence was, in fact, purely accidental. He was picked up as a social companion, rode in the back seat of the car, and in no way assumed to control or direct the operation of the car. It is not even claimed that the father knew of his presence, or that he possessed any license whatever. Nor did the son claim to know of that fact, or place any reliance thereon. We see no reason for disturbing the verdict. The motion for a new trial is, therefore, denied. Motion denied.