McGowan v. Longwood

Braley, J. The plaintiff while in the exercise of due care walking on a public way in the city of Boston was struck and injured by an automobile owned and registered in the name of the defendant, but negligently driven by the defendant’s son Theodore, a minor and duly licensed operator. The question for decision is whether the defendant is responsible for his son’s negligence. The jury would have been warranted in finding that the defendant bought the car for use as a “family car,” and that on the day in question the son, who lived at home, without his father’s knowledge obtained the keys to the garage, which were kept in the house, and with a companion, one Hatch, took out the car for a pleasure ride. They finally went to the “ Army Base,” where Hatch bought some goods which were being taken to his home when the accident [341] happened. While no express permission had been given Theodore to use the car whenever he desired, it did not conclusively appear that either he or his brother, who also was a member of the family holding an operator’s license, had been forbidden its use unless the defendant’s consent was first obtained. It is manifest that the car was not being used by Theodore in any service required by the needs of the family, but for his own personal benefit and enjoyment. The defendant’s automobile was not an instrumentality inherently dangerous; and it would be a departure from the rule of the common law to hold him responsible for his son’s tortious acts, even though he was living at home. Homer v. Thwing, 3 Pick. 492, 494. Moon v. Towers, 8 C. B. (N. S.) 611. Gould v. Elder, 219 Mass. 396. The plaintiff however contends that it could properly be found that the son was acting as his father’s servant or agent in a designated employment. The doctrine' on which he relies to bring the case at bar within the general rule, that the master is liable for a servant’s tortious acts, and a principal for the wrongs inflicted by his agent, while the servant or agent is acting within the scope of the authority conferred, is formulated in Birch v. Abercrombie, 74 Wash. 486, in these words, “It seems too plain for cavil that a father who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair, that is, his business, and any one driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sense a differentiating circumstance abrogating the agency. It was within thé general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one as well as by all. In this there is no similitude to a lending of a machine to another for such other’s use and purpose unconnected with the general purpose for which the machine was owned and kept. . . . We think that, both on reason and authority, the daughter in the present instance should be held the agent of her parents.” The courts of last resort of several States seem in kindred cases to be in accord with this view. We refer only to Griffin v. Russell, 144 Ga. 275, Stowe v. Morris, 147 Ky. 386, Kayser v. Van Nest, 125 Minn. 277, Lewis v. Steele, [342] 52 Mont. 300, Davis v. Littlefield, 97 S. C. 171, and King v. Smythe, 140 Tenn. 217. It was also adopted in Denison v. McNorton, 228 Fed. Rep. 401. But in Doran v. Thomsen, 47 Vroom, 754, the court say, that such an application of the law “makes the defendant’s liability to depend upon the object for which he purchased the machine, which was for the pleasure of the family; in connection with the fact that his daughter operated it for that purpose, the jury being instructed that thereby she became his servant. ... It would subject a parent to liability if he bought for his son a baseball, or for his daughter a golf club, and by permitting them to be used by his children for their appropriate purposes, injury occurred. It bases the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child. This proposition ignores an essential element in the creation of that status as to third persons, that such use must be in furtherance of and not apart from the master’s service and control, and fails to distinguish between a mere permission to use and a use subject to the control of the master and connected with his affairs.” The opinion in Van Blaricom v. Dodgson, 220 N. Y. 111, disposes of the theory of “family use” as follows, “The question which it presents really resolves itself into the one whether, as a matter of common sense and practical experience, we ought to say that a parent who maintains some article for family use and occasionally permits a capable son to use it for his individual convenience ought to be regarded as having undertaken the occupation of entertaining the latter and to have made him his agent in this business, although the act being done is solely for the benefit of the son.” It was held that the plaintiff could not recover. A corresponding result has been reached for substantially similar reasons in Parker v. Wilson, 179 Ala. 361, Reynolds v. Buck, 127 Iowa, 601, Zeeb v. Bahnmaier, 103 Kans. 599, Arkin v. Page, 287 Ill. 420, Hays v. Hogan, 273 Mo. 1, Pratt v. Cloutier, 119 Maine, 203, Loehr v. Abell, 174 Mich. 590, Woods v. Clements, 113 Miss. 720, Elms v. Flick, 100 Ohio St. 186, Blair v. Broadwater, 121 Va. 301, and McFarlane v. Winters, 47 Utah, 598. We prefer this application of the rule. It seems to us to be fundamentally sound. It is in accordance with the law of master and servant and of principal and agent as [343] expounded in many decisions of this court. A few illustrative cases may be cited. Salem Bank v. Gloucester Bank, 17 Mass. 1. Foster v. Essex Bank, 17 Mass. 479. Howe v. Newmarch, 12 Allen, 49. Haskell v. Starbird, 152 Mass. 117, 121. Brown v. Jarvis Engineering Co. 166 Mass. 75. Smith v. Jordan, 211 Mass. 269. Coughlin v. Rosen, 220 Mass. 220, 223. The motion for a directed verdict should have been granted. The exceptions therefore must be sustained, and judgment entered for the defendant. So ordered.