Rounds, Admr. v. Phillips

Digges, J., delivered the opinion of the Court. The question for decision in this case is raised by an appeal from the action of the lower court in sustaining the demurrers interposed by the defendants (appellees) to the declaration and each count thereof. The appellant is the administratrix of Robert Lee Rounds (plaintiff below), and the appellees are William H. Phillips, Sr., and Bessie Phillips, his wife, the father and mother of William H. Phillips, Jr., deceased. The declaration contains two counts, which are identical, with the exception that the first count asks damages for the pain and suffering of the appellant’s decedent, while the ¹⁵³ second count asks for recovery for damages done to appellant’s decedent’s truck and the contents thereof.

The first count of the declaration is as follows: “For that the said Robert Lee Rounds, unmarried, a resident and citizen of Wicomico County, Maryland, died in said county on the 13th day of April, 1933, intestate, and the said Laura D Rounds, mother of said deceased, thereafter regularly qualified, on or about the 18th day of April, 1933, in the Orphans’ Court for said county as administratrix of the estate of said deceased; and for that for a long time prior to the 5th day of February, 1932, and between said latter date and the 13th day of April, 1933, William H. Phillips, Jr., a minor, born on the 1st day of December, 1912, now deceased, was habitually negligent, reckless and incompetent in the operation of automobiles on the public highways of the State of Maryland and elsewhere, including excessive and dangerous rates of speed, and was either inherently incapable of comprehending the legal duty imposed upon him to operate automobiles on said public highways with reasonable care and caution or was contemptuous of that duty and of the rights of other travelers on said public highways, and that, as a result of his habitual negligence, recklessness and incompetence in the operation of automobiles as aforesaid, the said William H. Phillips, Jr., prior to the said 5th day of February, 1932, had seriously injured himself during his operation of automobiles, and had been frequently warned by the police of the State of Maryland and by others, including the defendants, to desist and refrain from his said habitually reckless, negligent and incompetent practices in the operation of automobiles, and had been, on or about the 20th day of February, 1930, convicted by 'S. King White; Justice of the Peace, Salisbury, Maryland, of operating an automobile on the public highways within said Wicomico County in excess of the speed limit provided in the Public General Laws of Maryland and had been fined the sum of $10.00 therefor, and had been, on or about the 30th day of January, 1932, convicted by the said S. King White, Justice of the Peace ¹⁵⁴ as aforesaid, of reckless driving of an automobile on tbe said public highways, of said Wicomico Oounty in violation of the Public General Laws of Maryland and had been fined $5.00 therefor, and had been, on or about the 4th day of May, 1932, convicted by said S. King White, Justice of the Peace as aforesaid, of operating the hereinafter mentioned Buick automobile on .the public highways of said Wicomico County while he, William H. Phillips, Jr., was under the influence of liquor in violation of the said Public General Laws of Maryland and had been fined $100.00 therefor, and had experienced, on or about the 10th day of May, 1932, the revocation of his license as the operator or chauffeur of automobiles by the Commissioner of Motor Vehicles of Maryland because of the operation of said Buick automobile while under the influence of liquor as aforesaid, and had experienced, on or about the 10th day of May, 1932, the revocation or suspension of the license issued by said Commissioner of Motor Vehicles, as hereinafter set forth, for the operation of said Buick automobile as the result of the aforesaid revocation of his license as the operator or chauffeur of automobiles for the reasons aforesaid, and had procured, only after great difficulty, on or about the 4th day of November, 1932, reinstatement of license to him from the said Commissioner of Motor Vehicles as the operator or chauffeur of automobiles, after having been compelled to file and establish with the said Commissioner of Motor Vehicles, upon the demand of the latter, so-called ‘financial responsibility’ in the form of a policy of insurance in the sum of $5,000.00, issued by Keystone Indemnity Company, [now reputedly insolvent, for the financial benefit and protection of any persons, firms or corporations who or which might sustain damages as the result of any subsequent negligence, recklessness or incompetence of the said William H. Phillips, Jr.-, in the operation of automobiles, as a condition precedent thereto as provided in the Public General Laws of the State of Maryland; and for that on or about the 5th day of February, 1932, the defendant, William H. Phillips, Sr., father of said William ¹⁵⁵ H. Phillips, Jr., purchased the said Buick automobile, hereinbefore mentioned, and paid therefor from his own funds and, thereafter, on or about the 6th day of February, 1932, in conjunction with said William H. Phillips, Jr., suffered and permitted title to said Buick automobile to be registered in the office of the said Commissioner of Motor Vehicles and license for the operation thereof to be issued by said Commissioner of Motor Vehicles, both pursuant to the Public General Laws of Maryland, in the name of the said William H. Phillips, Jr., although the defendant, said William II. Phillips, Sr., knew or by the exercise of ordinary care and prudence should have known, at said time that the said William H. Phillips, Jr., was habitually negligent, reckless and incompetent in the operation of automobiles on the public highways, of the State of Maryland and elsewhere including excessive and dangerous rates of speed, and was either inherently incapable of comprehending the legal duty imposed upon him to operate automobiles on said public highways with reasonable care and caution or was contemptuous of that duty and of the rights, of other travelers on said public highways, as. aforesaid, and also knew, or by the exercise of ordinary care and prudence should have known, of the occurrences hereinbefore set forth in the record and career of said William H. Phillips, Jr., as the operator or chauffeur of automobiles which had transpired prior thereto as aforesaid; and for that, on or about the 9th day of July, 1932, the defendants and said William H. Phillips, Jr., in order that the said Buick automobile might be licensed by the said Commissioner of Motor Vehicles fox operation on the public highways of Maryland and elsewhere by the defendants and others, including said William H. Phillips, Jr., and as the result of the revocation or suspension, under the circumstances hereinbefore set forth, of the aforesaid license for the operation thereof theretofore issued as aforesaid, caused title to said Buick automobile, theretofore registered in the name of said William H. Phillips, Jr., as aforesaid, to be assigned a3id transferred to the defendant, Bessie Phillips, wife of the ¹⁵⁶ defendant, said William H. Phillips, Sr., and mother of the" said William H. Phillips, Jr., and thereafter caused licenses for the operation thereof, as aforesaid, for the remainder of the year 1932 and for the year 1933 to< be issued by said Commissioner of Motor Vehicles in the name of the defendant, said Bessie Phillips, and that title to said Buick automobile remained so registered and license therefor likewise remained in the name of the defendant, said Bessie Phillips, on th 13th day of April, 1933; and for that the defendants negligently, carelessly and imprudently furnished said William H. Phillips, Jr., with and negligently, carelessly and imprudently permitted and suffered the said William H. Phillips, Jr., to be in possession of and to use and operate said Buick automobile upon the said public highways of the State of Maryland and elsewhere whenever the said William II. Phillips, Jr., desired or chose so to do between the said 6th day of February, 1932, and the 13th day of April, 1933, excepting the period between the 10th day of May, 1932, and the 9th day of July, 1932, during which time said Buick automobile was unlicensed for operation as aforesaid, and at their own expense, negligently, carelessly, and imprudently furnished gasoline and oil therefor and kept the same in repair during said period, and also negligently, carelessly and imprudently assisted and abetted the said William H. Phillips, Jr., in obtaining reinstatement of license, on or about the 4th day of November, 1932, as the operator or chauffeur of automobiles as aforesaid, and in that connection negligently, carelessly and imprudently provided or caused to be provided the said insurance policy in the sum of $5,000.00 as aforesaid, the said William H. Phillips, Jr., having been possessed of no property and assets and having been dependent upon the defendants for his support and maintenance, although the defendants knew, or by the exercise of ordinary care and prudence should have known, at all times between said 5th day of February, 1932, and said 13th day of April, 1933, that the said William H. Phillips, Jr., was habitually negligent, reckless and incompetent in the ¹⁵⁷ operation of automobiles on the public highways of the State of Maryland and elsewhere, including excessive and dangerous rates of speed, and was either inherently incapable of comprehending the legal duty imposed upon him to operate automobiles on the said public highways of Maryland and elsewhere with reasonable care and caution or was contemptuous of that duty and of the rights of other travelers on said public highways, as aforesaid, and also knew, or by the exercise of ordinary care and prudence should have known, of the occurrences hereinbefore set forth in the record and career of the said William H. Phillips, Jr., as the operator or chauffeur of automobiles as the same transpired, and also knew, or in the exercise of reasonable and ordinary prudence, care and forethought should have contemplated and anticipated, that the possession, use and operation of said Buick automobile by the said William H. Phillips, Jr., necessarily or probably involved or caused unusual danger to other travelers on the said public highways using due care and caution; and for that at or about 5.30 A. M. on said 13th day of April, 1933, while the said William H. Phillips, Jr., was negligently, caretlc-ssly and imprudently furnished with said Buick automobile by the defendants, as aforesaid, and was in possession of and was using it with the negligent, careless and imprudent permission and sufference of the defendants, as aforesaid, and was negligently, carelessly and imprudently furnished with gasoline, oil and repairs therefor by the defendants as aforesaid, and after the defendants had negligently, carelessly and imprudently assisted and abetted the said William H. Phillips, Jr., in obtaining reinstatement of license as the operator or chauffeur of automobiles as aforesaid, and in that connection negligently, carelessly and imprudently had provided or caused to be provided the said insurance policy as aforesaid, and was operating the same is a westerly direction along the State highway in said Wicomico County leading from Salisbury to* Mardela Springs, and returning to the home of the defendants at Hebron, Maryland, about six miles westerly from said Salisbury, Maryland, with whom and at which ¹⁵⁸ former place the said William H. Phillips* Jr., resided, negligently, recklessly and incompétently, and at a rate of speed of approximately seventy-two miles per hour, and in such negligent, reckless and incompetent manner as the defendants knew or by the exercise of ordinary care and prudence should have known, that it was habitual and customary for the said William H. Phillips, Jr., to operate automobiles as aforesaid, the said Robert Lee Rounds, now deceased, engaged in dairying operations and farming at the farm of his father, one E. Henry Rounds, located about four miles westerly from said Salisbury and along the said State highway, was operating his milk delivery motor truck along and upon said State highway in an easterly direction towards Salisbury, with due care and caution, for the purpose of making an early morning delivery of his dairy products to' customers within said Salisbury; and for that as a result of the aforegoing negligence, recklessness and incompetence of the said William H. Phillips; Jr., in the operation of the aforesaid Buick automobile, then and there titled and licensed and furnished to him by the defendants as aforesaid, and without any negligence or want of due care on the part of the said Robert Lee Rounds directly contributing thereto* the said William H. Phillips, Jr., caused the said Buick automobile, then and there operated by him as aforesaid, to collide with terrific force and violence with the said milk delivery motor truck then and there operated by the said Robert Lee Rounds, at a point in said Wicomico County one-quarter mile, more or less, from the westerly corporate limits of the said City of Salisbury, and to the west of the center of said 'State highway; and for that as the result of said collision the said Robert Lee Rounds was terribly, hideously and mortally mutilated, bruised and shocked and otherwise severely hurt, wounded and injured and was caused consciously to suffer excruciating bodily pain and mental anguish; and for that said mutilation, bruises* shocks, hurts, injuries, and conscious bodily pain and mental anguish, suffered by the said Robert Lee Rounds and inflicted upon him by the said negligence, reck ¹⁵⁹ lessness and incompetence of the said William H. Phillips, J'r., as aforesaid, resulted proximately and directly from the negligence, carelessness and imprudence of the defendants in furnishing said William H. Phillips, Jr., with and in suffering and permitting him to be in possession of and to use and operate said Buick automobile at said time and place of said collision, as aforesaid, and in furnishing gasoline, oil and repairs therefor, as aforesaid, and in assisting and abetting the said William H. Phillips, Jr., in obtaining reinstatement of license as the operator or chauffeur of automobiles, as aforesaid, and in that connection, in providing or in causing to be provided the said insurance policy as aforesaid, well knowing, as the defendants then did, or should have done by the exercise of ordinary care and prudence, that said William H. Phillips, Jr., was habitually negligent, reckless and incompetent in the operation of automobiles on the public highways, of Maryland and elsewhere, including excessive and dangerous rates of speed, and was either inherently incapable of comprehending the legal duty imposed upon him to operate automobiles on said or any other public highway with reasonable care and caution or was contemptuous of that duty and of the rights of said Robert Lee Rounds and of other travelers on said or any other public highways, as aforesaid, and well knowing as the defendants then did, or should have done by the exercise of ordinary care and prudence of the occurrences hereinbefore set forth in the record and career of said William H. Phillips, Jr., as the operator or chauffeur of automobiles which had transpired prior thereto as aforesaid, and also well knowing as the defendants then did, or in the exercise of reasonable and ordinary prudence, care and forethought should have contemplated and anticipated, that the possession, use and operation of said Buick automobile by said William H. Phillips, Jr., at said time and place or at any other time or on any other public highway, by reason of his aforesaid habitually negligent, reckless and incompetent propensities and record in the operation of automobiles, as aforesaid, and particularly of said Buick ¹⁶⁰ automobile, necessarily or probably subjected tbe said Robert Lee Rounds and any other travelers on said or any other public highway of Maryland or elsewhere, likewise using due care and caution, to the dire and calamitous consequences sustained and suffered by the said Robert Lee Rounds; and for that such mutilation, bruises, shocks., hurts, injuries and bodily pain and mental anguish did not result from any negligence on the part of the said Robert Lee Rounds or of this plaintiff directly contributing thereto.” The theory upon which the plaintiff seeks to recover against the defendants is that the defendants permitted, or failed to prohibit, the use of an automobile by their minor son, which son they knew, or should have known from facts known to them, was negligent, reckless; and incompetent in the operation of automobiles. The declaration alleges that the appellant’s decedent was killed and his property damaged by the negligent and reckless use of the automobile by the deceased son of the defendants.

The appellant does not seek recovery upon the theory that the negligence of the defendants’ deceased son is imputable to the defendants, or that the said son was the agent or servant of the defendants; nor does she attempt to invoke the “family car doctrine,” or any other relationship which would make the principle of respondeat superior apply. On the contrary, the theory upon which the declaration is drawn entirely eliminates vicarious negligence, and rests solely upon the primary negligence of the appellees themselves in permitting their son, alleged to have been habitually reckless, negligent, and incompetent in the operation of automobiles, to be in possession of and operate the Buick automobile described in the declaration at the time of the accident, when that habitual negligence, recklessness, and incompetence was known to the appellees, or should have been known to them from facts of which they had knowledge. In other words, the plaintiff invokes the principle involved in Restatement of the Law of Torts, part IV, Negligence, chap. 2, sec. 260: “One who supplies directly or through a third person a chattel for the use of another whom the sup ¹⁶¹ plier knows, or from facts known to him should know, to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to. share in,