Boes v. Howell

OPINION OP THE COURT. HANNA, C. J. (after stating the facts as above). At the conclusion of plaintiff’s case, the defendant moved the court to instruct the jury to return a verdict in favor of the defendant for the following reasons: First, that there had been no proof that the person driving the car was the agent of the defendant; second, if such proof existed there, was nothing to show that the driver of the car was the agent of the defendant acting within the scope of his employment. A further ground pertaining to tbe alleged failure to prove damages was interposed, but for the purposes of this ease does not require our consideration. In this connection appellant contends that at the conclusion of the plaintiff’s case, when this motion was interposed, the plaintiff had proved, in regard to liability, only that the car which was driven at the time of the accident was owned by the defendant, and that his son, Guy Howell, was driving the same. [1] By plaintiff’s complaint it was alleged that the defendant is the owner of an automobile which he permits his sons, Guy Howell and John Howell, to drive and operate for their pleasure and for the pleasure of the defendant’s family and for his business. Defendant’s answer in this connection was as follows: “Defendant admits that he is the owner of the automobile, but denies that on the occasion of the alleged accident that he permited or authorized Guy Howell to use or drive said car.” [2] It does not appear that he forbade him to drive the car on the occasion of the accident or on any other ■occasion. There is no denial of the allegations of the complaint that the defendant permitted his sons, to drive and operate for their pleasure and for the pleasure of the defendant’s family the defendant’s car. The fact that he denied that on the occasion of the accident he permitted or authorized his sons to drive the car is not a sufficient denial of the allegation of the complaint. It is fundamental that matters properly pleaded which are not denied stand admitted. , 31 Cyc. 207. We therefore have established by the pleadings that the defendant was the owner of the automobile in question, which he permitted his sons to drive and operate for their pleasure and for the pleasure of the defendant’s family. A question is raised as to whether or not there is sufficient proof to show that the son driving the car at the time in question was a minor, but we believe that this is sufficiently established by the testimony of a witness, who, when testifying as to tbe ages of tbe boys in tbe car, said that they ranged from 16 to 19 years. It therefore appears that a minor son of tbe defendant was driving the car at tbe time of the accident, and that this was by tbe permission of tbe defendant. Turning to Berry on Automobiles (2d Ed.) § 653, we quote from the text as follows: “The rule is followed, in most of the states in. which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and¡ his family is liable for injuries caused by the negligent operation of the machine while it, iss being used for the pleasure’) or convenience of a member of his family.” See, also, The Law Applied to Motor Vehicles, §§ 902, 903. An examination of tbe numerous authorities upon tbe question of liability in these cases discloses that tbe mere existence of tbe relation of parent and child is not sufficient to raise tbe relation of master and servant, or create agency upon tbe part of the child so as to render tbe parent liable for tbe child’s negligence in operating the former’s automobile. In a case note found in 50 L. R. A. (N. S.) 59, following tbe ease of Birch v. Abercrombie, a very comprehensive editorial note, supported by authority, points out that: “The owner of an automobile who maintains it for the general use of hisx family should be held liable for its negligent operation by one of his children, whom he designates or permits to run it, where the car is occupied and being used at the time of the injury for the pleasure of other members of the owner’s family than the child driving it. Under such circumstances the latter is unquestionably acting as the agent or servant of the owner in carrying out the purposes for which the car was bought, as much as if the owner had hired a person outside of the family to act as chauffer.” In the case of Birch v. Abercrombie, referred to, which is also reported in 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59, tbe court expressly held that: “The burden is upon a parent, whose child causes an injury while driving the parent’s automobile, to overcome the presumption that the child was driving the vehicle for the owner.” The Washington Supreme Court’ further said in the same opinion: “A daughter, in using her father’s automobile for her own pleasure, is his servant in doing so, if he purchased and kept the automobile for the use of his family.” The ■ facts in the case referred to are closely analogous to the facts of the instant case. See, also, Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970; Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994. Following the last-mentioned case in L. E. A. there is another extensive note, collecting later authorities and supplementing the note in 50 L. R. A. (N. S.) 60. In- this note, and in a number of authorities which we have examined, it is pointed out that a somewhat different question arises where an injury is inflicted by the negligent operation of an automobile purchased for the general'use of the owner’s family by his child, while the latter, with the express or implied permis- ' sion of the father, is using it for his own pleasure alone. As pointed out in the last-mentioned note, the parent’s liability for the injury caused by the negligent operation of the car by one of his children, whom he designates or permits to run it, is clearer in a case where the child was at the time driving with other members of the family than where driving alone, since the presence of other members of the family tends to show that the car was being used for the purpose for which it was intended, and that the operat- or was acting as the parent’s servant. We do not believe that this suggested difficulty has application to the present case. Two members of the defendant’s family were in the car, and, so far as the record discloses, the ear was not being used for the pleasure of one member of the family alone. We might add numerous authorities to this opinion, but we agree with the view expressed by the Washington court in the case of Birch v. Abercrombie, supra, which we will quote as follows: “It seems too plain for cavil tliat a father, who furnishes a vehicle for the customary conveyance of tho 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.” There are other assignments of error in appellant’s brief, but they are primarily, if not entirely, disposed of by the conclusion at which we have arrived in this opinion. Finding no error therefore in the record, the judgment of the trial court is affirmed, and it is so ordered. PARKER, J„ concurs.