Galpin v. Fisher

Raper, District, Judge. , The petition alleges , that .the .defendant ¡furnished Ms minor sons an automobile to drive to and from school, [701] and that one of the sons, while using the car for such imrpose, through his negligence, injured- plaintiff. The testimony shows that defendant, who lived several miles' from Broken Bow, had two minor sons attending school in that city; that defendant kept-a Ford automobile'for their regular use in driving to and'from school, and also owned a Hudson ear, which the boys drove to school on some occasions. The defendant, according to his testimony, ■ which was not disputed, had given directions to the sons to drive from home directly to the Ford garage in Broken Bow, where he had arranged for storage .of the car; and leave the car- in -the garage until close of school,‘and then -return home, and .'-forbade them, using the car for any other purpose, and that he directed them to-never permit'others to ride with-them. There is evidence that the boys had used the cars on different occasions to drive to -town for various purposes besides going to school, and used - the cars to carry others at times about, the- town, and that the father knew of such occurrences, and, because of such ácts,‘had threatened to stop-the sons-from using the cars and-.require them to use'.a horse and buggy in going to school, but, instead of prohibiting the use of ■ the automobiles, the father permitted-the-sons to-continúe using'them. On the morning' of plaintiff’s injury, the father-, was at work in the field -when-the boys,- on going'to .the garage for-the Ford ear to’start -for - school, • discovered the-Ford car'had a flat tire,-so they took-the-Hudson- and drove to- the- Hudson garage in' Broken- -Bo-w to have- some slight repairs • made. -They intended to leave"the car -in the Hudson gáragé-and' go to school, búfp on looking at the time and finding it -about: 20 'or 25' minutes before school opened, took-the Car out of• the-garage,: picked up. a couple of school companions,:, and- started out for a pleasure drive until time for school - td begin. ' On this trip-they -dr ove-.several ¡blocks -from the: garage, passed the schoolhouse a couple of blocks, turned and came back toward the schoolhouse, where a number of children were [702] in and about the school grounds, where Marion Fisher, the 19 year old son of defendant, who was driving the car, struck a little girl and ran the car onto the school ground, where the plaintiff was injured. There is ample evidence to sustain the alleged negligence, and no objection is raised to the finding of the jury, on that question, nor as to the amount the jury allowed plaintiff for his damages. The defendant’s contention is that, because he had given the sons positive directions limiting the use of the car, and that the sons, while using the car in disobedience of his orders, injured plaintiff, he is not responsible for their acts committed during such unauthorized use of the car. The evidence was such that, if the case had been submitted to the jury on the theory that the father had furnished the automobile for the customary convenience and pleasure of the family, under the rule adopted by this court in Stevens v. Luther, 105 Neb. 184, and Linch v. Dobson, 108 Neb. 632, the jury might have found the father liable. However, the petition, perhaps, was not so drawn as to permit such submission. The trial court took the view that, under the pleadings and evidence, the case came within the principles announced in Ryne v. Liebers Farm Equipment Co., 107 Neb. 454, and instructed the jury that, if they found that Marion Fisher had been directed to drive the automobile over a certain route and place the car in the Ford garage, and that Marion Fisher deviated materially and substantially from the instructions so given him, then the' defendant would not be liable, but, if the deviation had been only slight, then such deviation would not of itself relieve the defendant from liability. This instruction was more favorable to the defendant than he was entitled to under the pleadings and evidence. The evidence is sufficient to support the verdict on that [703] theory, and it is unnecessary to review the authorities, as the cases in this state above cited are controlling. The verdict and judgment should be affirmed. Affirmed.