Myers v. Shipley

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment obtained by the appellee against Howard E. Myers, the owner of an automobile, and E. Ray Myers, his adult son, who was driving it when an accident occurred, due to the alleged negligence of the latter. This suit was for the destruction of the plaintiff’s buggy, injury to his horse, and for personal injuries to himself, and the loss of the services of his wife and expenses incurred by him for injuries sustained by her. Another suit by Mrs. Shipley resulted in a judgment for her, and the parties agreed that the record in that case should not he transmitted to this Court, but that the judgment therein rendered should abide the result of this appeal.

Iu addition to the usual allegations in such cases, it is alleged “that, thereafter the defendant, Howard E, Myers, adopted and ratified said act, reckless, careless and negligent operation of said automobile by- his said-------or son, the defendant E. Ray Myers, whereby tbe plaintiff and his wife were damaged and injured as aforesaid, and assumed liability and responsibility for it.” The only bill of exceptions in the record is one presenting the rulings of the court in rejecting the defendant’s first and first and one-half prayers, but the appellants’ attorneys in their brief concede that the first and a half prayer was bad under what we said in Firor v. Taylor, 116 Md. 69, 84 . The only one for our consideration, therefore, is the first, which is, “That under the pleadings there is no legally sufficient evidence from which the jury may find that the defendant, Howard E. Myers, was responsible in any way for the-injury ³⁸² on account of which recovery is sought in this suit, and the verdict of the jury must be for the said Howard E. Myers.” Apparently the appellants were under the impression, by reason of what was said and done in Firor v. Taylor, 116 Md. 69, 84 , and Ewing v. Rider, 125 Md. 149, 156 , that, as there was a joint judgment against the two, there must be an affirmance or reversal of that joint judgment under the first prayer; but, since those decisions, the Act of 1920, chapter-229, adding section 22B to article 5 of the Code, was passed, providing that “if, on appeal, it shall appear to the Court of Appeals that said judgment should be affirmed, as to all said defendants, or should be reversed as to all said defendants, or should be affirmed as to one or more of said defendants and should be reversed as to one or more of said defendants, then the said Court of Appeals may so direct.” As there is no valid exception in favor of E. Eay Myers, the only question, therefore, before us, is whether the judgment against Howard E. Myers should be affirmed or reversed. Howard E. Myers owned the ear which is alleged to have caused the injuries complained of. He was called as a witness by the plaintiff, and it appears in his testimony that he had six children, E. Eay Myers being the second one.

He got this car in April or May, 1920, and had one before, which he traded and got this one. He was asked: “Q. Is this car used for your family? A. Yes, sir. Q. Who had been running the car, your son?

A. Yes, sir; both of them.; the boy néxt to him and the older boy before he left home. Q. All of them had a right to use it for family use? A. Yes^ sir.” On cross-examination he testified that his son,, Eay, was twenty-two years old, that he employed him on the farm, and paid him wages by the month, and he was so employed at the time of the accident. He said, if the boys were out and wanted gasoline or oil, they got it, and if anything happens like spark plugs or something like that they got them and pay for them.

He said he did not know anything about the accident at the time it happened, that he did not know anything about his son taking the car out that ³⁸³ night, or for what purposes he took it; that the uight of the accident the car was at a garage in Westminster, where it had heen for a day or two. He was asked: “Q. What was it there for? A. Eor some little repairs, I don’t know. 1 think mayhe battery trouble. I don’t pay much attention to the car myself.” He .said he did not know anything about his son going for the car that night, and he had not told him to go.

He was asked by an attorney lor the plaintiff: “Q. Of course, Mr. Myers, your son, a.s you have stated, had perfect authority to get that car that night and use it % A. If it was done, he had. I didn’t tell him nothing about it. Qi You didn’t tell him not to do it? A. Ho, sir.” Upon being asked by his attorney: “Q. It was not for any purpose of yours that he would go down the road to an oyster supper?

A. I wouldn’t think so, he didn’t bring me any oysters back.” The defendant E. Ray Myers said the automobile had been at the garage a day or two, that he went to town that night on the train (they lived three or four miles from Westminster), and did not have any conversation with his father in. reference to the automobile, that they had said at the. garage that they expected it would be finished and he went for it; that Earl Shaffer got in the ear with him and they were going to an oyster supper at a village called G-amber. Earl Shaffer corroborated him. It is a five-passenger Paige car, and 'they expected to get two girls to go with them, but liad not when the accident happened. We come now to the question left unanswered in the case of Whitelock v. Dennis, 139 Md. 557 , decided at the October term, whether the owner of .an automobile provided by him for the use of his family is liable to a party injured by the negligence of his son, when the car was being used wholly for purposes of tho son, and not for those of the owner.

In the case of Whitelock v. Dennis , we said: “We are not willing to commit ourselves to the doctrine that an owner of an automobile is responsible for injuries sustained by a third ³⁸⁴ party by reason of the negligence of a minor son in running the car, if the car was, a,t the time, being used by the son for his own purposes and not, for those of his father, even if he had the permission, express or implied, of his father^ so to use the oar.” And we said that the defendant’s third prayer, which in substance announced that rule, should have been granted. Of course, we were careful to confine the rule to such facts as we then had before ns, which did not show that the use of the ear by tbe son necessarily or probably involved unusual danger, and -there was no evidence of his being reckless or incompetent to drive a car. That son was only eighteen years of age, hut he had a State license to operate a ear. As there was a conflict of evidence in that case as to whether it was being used for the father, we held that the case should go to the jury.

There is an unfortunate conflict in the decisions bearing on this subject. Many of them have been made by courts of high standing and have 'been supported by forcible and exceptionally able opinions, presenting the views of the respective sides, if we may use that term, of the controversy. We cannot but he impressed, however, with the conviction that some of them have disregarded principles of law applicable to -the relations of principal and agent-, and master and servant, which, before the days of automobiles, and especially before they had become so numerous on our -streets and other highways, were supposed to he as firmly fixed as any principles known to the common law. There have been some attempts to separate the decisions of -the courts in the different states into two main classes, those holding the owners, of cars purchased for the u-ses of their families responsible for injuries sustained 'by the negligent driving of their sons, or other members of their families, and those holding that they were not liable, but as many of them depend upon the facts -of the particular cases, it is necessary to examine them critically in order to ascertain how they can he properly classified.

In this case, as ³⁸⁵ an adult son, living with his father, was driving the oar for his own purposes, without the knowledge of his father that he was using it on that occasion, but undoubtedly with implied authority so to use it, we will refer to such of the authorities as may he of use in support of the position we will announce for this Court. One of the fullest discussions we have found on the subject is in tbe caso of Hays v. Hogan, 273 Mo. 1 , Aun. Cas. 1918 E, 1127. There the case of Daily v. Maxwell, 152 Mo.

App. 415 , which is often cited in support of the view that the owner is liable, was expressly overruled, as was Hays v. Hogan, 180 Mo. App. 237 . The Supreme Court of Missouri held that “the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained thereby through the negligence of his minor son while operating the car on a public highway, in furtherance of his own business or pleasure ; and tbe fact that he had his father’s special or general permission so to use the oar is wholly immaterial.” Of course, the fact that the son is an adult does not lessen, but sometimes may strengthen, tbe reasons for the rule. In Parker v. Wilson, . 179 Ala. 361 , 43 L. R. A. N. S. 87, an eighteen-year-old son took his fatheris automobile for bis own uses without the father’s knowledge, but by bis implied general permission, and it was held that the son was nor, the agent of the father, and the latter was not liable for the negligence of the former in operating the car.

The court said, the doctrine that the pleasure of the family is the business of the father “has no firm foundation in reason or common sense. In theory it overlooks well settled principles of law; in pi’actice it would interdict the father’s generosity, and his reasonable care for the pleasure or even the well-being of his children, by imposing a universal responsibility for their acts.” In Spence v. Fisher, 184 Cal. 209 , 193 Pac. 255 , it was said, in reference to the theory that the son was ³⁸⁶ engaged in the business of his father in such cases: “Of course, it is true that every good .father makes it his ‘business’ in a certain sense of that word,, to. furnish, so far as he can, for use by the members of his family, all those things that will contribute to their convenience and pleasure.. But to our minds his doing this cannot, by any sound reasoning, warrant a conclusion that, in the subsequent use of the thing by a member of the family solely for his own convenience or pleasure, while engaged exclusively on a mission of his own, such members of the family is engaged on the father’s business or in any way acting as his agent or servant.” That ..case overruled Crittenden v. Murphy, 36 Cal. App. 803 .

The case of Doran v. Thomsen, 76 N. J. L. 754, is a leading one in favor of the doctrine that the father is not responsible for the negligence of a son or daughter while using the car for his or her own purposes, and not those, of the father, although used with the permission of the father. The court said that the mere fact of the relation of parent and child would not make the child the servant of the parent, and held that his liability in such case depended upon the relation of master and servant. It said: “She was not even driving other members of the family. She was using the machine as a means of recreation and pleasure for herself and her own friends, and it would seem impossible to draw the conclusion that she could be regarded as the agent or servant of her father upon that occasion.” It then went on to say that assuming the relation of master and servant existed generally between the father and daughter, yet it did not appear that on the occasion in question she was acting as such servant within the scope of her employment, and repeated the well-known doctrine that the master was “not responsible if the negligence was committed by the servant when engaged in some private matter of his own.” It is contended that the doctrine of that case has been very much modified, if not reversed, by that court in Missell v. Hay’s, 86 N. J. L. 348.

In that case Hays' had purchased a e:ar for the general uses of his family, and it was for that pur ³⁸⁷ pose habitually operated by the owner and his two sons, sometimes with, and sometimes without, his express consent and direction. At the time of the accident, one of the sons was driving the car, and in it were the wife and daughter of the father and two guests. The court said that in the Doran case, “Ho other members of the father’s family were in the car. The only element in the case tending to show that the daughter was acting as the servant of the father was the bare fact that the father owned the automobile, which, being personal property, was presumably, in the absence of evidence to the contrary, in his possession or the possession of his servant, at the time of the accident; possession being the badge of ownership of personal property.

This presumption, however, in that case was overcome by the uncontradicted proof that in fact the automobile was not in the possession of the owner or his servant, but that, on the contrary, it was in the possession of a third party (who happened to be his daughter), who was using it for her own pleasure and the pleasure of her friends, and not upon the owner’s business.” The court then went on to say that in the Hayes case there were the father’s immediate family and their guests; that “this fact constituted affirmative evidence that the automobile was being used in the father’s affairs or business. It was within the scope of the father’s business to furnish his wife and daughter, who were living with him, as members of his immediate family, with outdoor recreation, just the same as it was his business to furnish them with food and clothing, or to minister to their health in other ways. It cannot be said, therefore, that in this case there was no evidence of possession, except a mere presumption, which could be overcome by proof of inconsistent facts. Here there was affirmative proof of the fact of possession, quite apart from any presumption.” The court said that there was also evidence that the son invited his mother and sister to take a ride as his guests on a trip which he was taking for his own pleasure or business, and that they were doing so as such and not as members of his ³⁸⁸ father’s family, and hence it became a question for the jury to decide, and added: “We think the question was one of fact and that it