Lewis v. Steele , 52 Mont. 300 ( 1916 )

MR. JUSTICE SANNER

delivered the opinion of the court.

While crossing the intersection of Columbia (or Clark) and Park Streets, in the city of Butte, Rose Amelia Lewis was struck by an automobile and killed. The machine belonged to the defendant, but was being driven by Ralph Steele, one of his minor sons, and was conveying his sons with a party of their friends to a high school dance at the Columbia Gardens. The accident occurred about 8:35 P. M., on June 5, 1913, and the complaint, which is by the administrator of the estate of Rose Amelia Lewis, charges that her death was due to negligence in the handling of the machine, and seeks to hold the defendant liable therefor under the doctrine of respondeat superior.

The defendant answered, admitting the accident, but denying negligence, as well as all the allegations upon which his responsibility is sought to be based; and as a separate defense he submitted an elaborate plea the effect of which is to allege that there was no negligence, but, if there was, the plaintiff should not recover, because the injuries and death of Rose Amelia Lewis were due to her contributory negligence, the particulars of which are duly set forth. A demurrer to this plea as insufficient to constitute a defense was sustained.

Trial was to a jury. The evidence on the part of plaintiff tended to show that there was negligence in the handling of the machine, and that such negligence was the proximate cause of the accident. To establish the defendant’s responsibility reliance was placed upon a deposition of defendant himself, the substance of which, so far as pertinent here, is: That he has two sons, Chester, then aged nineteen, and Ralph, then aged seventeen; that he bought the machine in May, 1912, to be used, and it was used, for the pleasure of himself and his family, and for his business when necessary; that it had been kept since September, 1912, in a garage adjoining his premises and built by him for this and other purposes, and to that garage each of his sons had a key; that his sons were taught by the salesman how to operate the machine, and “either one of them operated it generally”; that he sometimes operated the machine himself, but always in company with one or both of the boys, because he had not become sufficiently adept to trust himself with it alone. “I let the boys do the operating of it at all times, especially when I went out with my family and on other occasions. In fact, the boys operated the machine a great deal without me being present in the machine, and I knew that. I did not know they operated it for their own uses, purposes and pleasure whenever they chose to do so. They usually consulted me if they wanted to go out with it or do anything with it, * * and that was the case on the 5th day of June, 1913. They had consulted with me about the use of it, and I had given them the machine to use on that day, and upon that occasion. At that particular time .they were to take a party of their own friends out to the Gardens, and it had been arranged that Chester was to bring the machine back and take my wife and I out to the Gardens after they had taken their friends out there. * * * I did not give this permission to both of the boys, to both Ralph and Chester, but gave it to Chester several days before with the understanding that they were to take a party of their own friends out to the Gardens. * * * There was to be a dance at the Gardens called the ‘Junior Prom’ of the high school, which was the occasion of speaking of this in advance. Both of these boys were not high school boys, but one of them, Ralph, was in the high school. Q. * # * Was it the desire of yourself and your family to participate in this dance at the Gardens or be present at it in consequence of the fact that Ralph was a member of the high school; that is, that he was attending the high school? A. Yes. * * # I never kept track of how often Ralph ran this machine in my presence; it was quite often. The boys ran the machine indifferently, at one time one, and at one time the other. # * * I did not see the machine leaving my house on June 5, 1913, and did not know at that time which of the boys was running the machine. I knew and had consented to either or both of the boys running the machine at any time. * * * I do know that Chester was to run the machine back. It was spoken of that Chester should run it back on that evening, and the matter of Ralph running it out was spoken of, too, but not to me. I had told Chester that he could run the machine, but Mrs. Steele got Chester to consent to Ralph running the machine to the Gardens. She subsequently informed me of this arrangement. My impression is it was after the machine left for the Gardens. Ralph was to run the machine on the outward trip to Columbia Gardens, and Chester back, to bring myself and my wife out. * * * I did not employ any other chauffeur or person to operate or run this automobile than the two persons that we have mentioned. * # # I did not consider those persons employed. # * * I consider an employee is one you.pay money to.”

The evidence on the part of the defendant tended to rebut that of the plaintiff upon the issue of negligence, and also, to some slight degree, that upon the issue of responsibility. In connection with the latter, however, the testimony of Chester Steele makes it perfectly clear that the machine left, with its load, from defendant’s home, and that Ralph was then driving.

The verdict awarded the plaintiff $10,000, and defendant’s motion for new trial was denied on the condition—which was accepted—that the plaintiff remit $4,000. Judgment being entered for $6,000 and costs, the defendant has appealed therefrom, as well as from the order denying him a new trial.

Sixty-two alleged errors are assigned, but the principal questions presented are whether the demurrer to the defendant’s plea of contributory negligence was properly sustained, and whether there was sufficient evidence to establish prima facie the responsibility of defendant.

1. The answer to the first of these questions may be found in [1] Day v. Kelly, 50 Mont. 306, 311, 146 Pac. 930, 931, wherein this court, holding that a plea of contributory negligence may be coupled with a denial of primary negligence, said: “The plea of contributory negligence, when coupled with a denial, is always hypothetical in effect, if not in form, and amounts to no more than this: I deny absolutely that I am guilty of negligence; but assuming, without admitting it, that some act of mine was negligent in character and proximately contributed to plaintiff’s injury, nevertheless plaintiff’s negligent acts united with my act to produce the injury, and without which the injury would not have occurred.” Again, in Nelson v. Northern Pacific Ry. Co., 50 Mont. 516, 531, 148 Pac. 388, 392; it was recognized that a plea of contributory negligence might be coupled with a denial of negligence, and the view expressed that when so made, the plea “involves merely a hypothetical admission, and does not in any measure relieve the plaintiff of the burden of proving negligence on the part of the defendant in some one or more of the particulars alleged in the complaint.” This being so, the plea at bar, which does in express terms exactly what we have twice said its office is to do, cannot be deemed legally insufficient.

There is some insistence by the respondent that no prejudice [2] was occasioned by this ruling, because there was evidence suggesting contributory negligence, and instructions were given upon that subject. Counsel ignore the necessary legal effect of the ruling, which was to render inadmissible any evidence on contributory negligence considered as a defense; or, in other words, to take that question out of the ease unless raised or suggested by the plaintiff’s own proof. That it was raised incidentally, and that instructions upon the subject may have thereby been justified, does not cure the error in depriving the defendant of the right, from his point of view, to bring that matter into prominent relief as an affirmative defense to be supported by all the competent evidence he could muster, and to be considered by the jury as a positive and efficient element in the case. The suggestion that “the defendant took no position which admitted that his negligence, combined with the negligence of the deceased, caused the injury,” is without value, because, in the light of the above decisions, he was never required to categorically acknowledge such negligence.

2. We premise our discussion of defendant’s responsibility [3] with the observations that, as “a father is not liable merely because of the relation for the torts of his child, whether the same are negligent or willful” (1 Cooley on Torts, p. 180), and as an automobile can no longer be deemed inherently dangerous (2 R. C. L. 1190), no responsibility of the defendant for the accident in question can be successfully asserted if the machine was taken without his knowledge or consent, or, if with his consent, it was taken for a purpose foreign to that for which it was kept and customarily used (McFarlane v. Winters (Utah), 155 Pac. 437; Clark v. Buckmobile Co., 107 App. Div. 120, 94 N. Y. Supp. 771; Maher v. Benedict, 123 App. Div. 579, 108 N. Y. Supp. 228; Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946; Premier Motor Mfg. Co. v. Tilford (Ind. App.), 111 N. E. 645.) It is deducible from the evidence, however, that defendant’s principal business,' so far as it involved the use of the machine, [4, 5] was the pleasure of himself and his family, including his two boys, Chester and Ralph. In carrying on this business he relied upon them as drivers of the machine and exacted of them this service. They served “indifferently,” first one, then the other, either of them being authorized to drive it whenever in the pursuit of family pleasure it should be driven. On the occasion in question it had not been taken surreptitiously, but was being used in the business for which it was bought and maintained, to-wit, the family pleasure; so much so that after depositing the guests it was to return to the home and complete the entire transaction by conveying the defendant and his wife to the same dance. It had not been specifically committed to Chester, but to “the boys,” and the driving of it at the time by Ralph was not against the defendant’s wishes, but was with his implied, if not express, assent. Whether these circumstances make a case for the application of respondeat superior depends upon considerations entirely beside the fact that the device employed was an automobile. That instrument is now too well established to be singled out for judicial preference or animadversion. It has taken its place among the common methods of transportation, and no good reason occurs to us, in the absence of legislation, for denying to its use the same general rules of responsibility, direct and consequential, as are applicable to other common methods of transportation, having in mind, of course, its potentialities for harm as well as good. If, therefore, the defendant would be bolden under the doctrine of respondeat superior had Mrs. Lewis been run over and killed by a team reasonably safe, but, under the same conditions as to purpose and authority as are here disclosed, incautiously driven by his son, then he is responsible in this case; otherwise not. That he would be responsible in the case supposed is reasonably well settled (Lashbrook v. Patten, 1 Duv. (Ky.) 316; Schaefer v. Osterbrink, 67 Wis. 495, 58 Am. Rep. 875, 30 N. W. 922; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336; Howe v. Newmarch, 12 Allen (Mass.), 49; Jennings v. Schwab, 64 Mo. App. 13; Broadstreet v. Hall, 168 Ind. 192, 120 Am. St. Rep. 356, 10 L. R. A. (n. s.) 933, 80 N. E. 145; Mulvehill v. Bates, 31 Minn. 364, 47 Am. Rep. 796, 17 N. W. 959; Shockley v. Shepherd, 9 Houst. (Del.) 270, 32 Atl. 173); and there is little room to deny the same conclusion to cases like the present, since the owner of an automobile is not to be absolved, any more than he is to be held, merely because a machine instead of a team was the instrument of harm. (McNeal v. McKain, 33 Okl. 449, 41 L. R. A. (n. s.) 775, 126 Pac. 742; Birch v. Abercrombie, 74 Wash. 486, 50 L. R. A. (n. s.) 59, 133 Pac. 1020; Kayser v. Van Nest, 125 Minn. 277, 51 L. R. A. (n. s.) 970, 146 N. W. 1091; Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351; Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; Stowe v. Morris, 147 Ky. 386, 39 L. R. A. (n. s.) 224, 144 S. W. 52; Ploetz v. Holt, 124 Minn. 169, 144 N. W. 745; Hays v. Hogan, 180 Mo. App. 237, 165 S. W. 1125; Geiss v. Twin City Taxicab Co., 120 Minn. 368, 45 L. R. A. (n. s.) 382, 139 N. W. 611.)

Defendant cited many cases to support his contention that no responsibility exists. These eases are, for the most part, against him; for they proceed upon the theory, more or less justified, that the evidence showed no service or agency, and they either tacitly or expressly admit the principle that, had agency or service been shown, liability would attach. The leading case in point against the conclusion here reached is Doran v. Thomsen, 76 N. J. Law, 754, 131 Am. St. Rep. 677, 19 L. R. A. (n. s.) 335, 71 Atl. 296. The criticism of this decision by the supreme court of Washington is, to our mind, so apt and so clearly expresses the fundamental considerations involved that we subjoin it as part of our declaration of the law in this state upon the subject: “The New Jersey case, Doran v. Thomsen {supra), is not distinguishable on the facts from the case before us. The father owned the automobile, kept it on his premises, and the daughter used it with his knowledge and consent at her pleasure. While heartily subscribing to the view there expressed ‘that the mere fact of the relationship of parent and child would not make the child the servant of the defendant,’ we think the opinion unsound in that it ignores the agency induced by the fact, independent of that relationship, that the daughter was using the machine for'the very purpose for which the father owned it, kept it, and intended that it should be used. It was being used in furtherance of the very purpose of his ownership and by one of the persons by whom he intended that purpose should be carried out. It was in every just sense being used in his business by his agent. There is no possible distinction, either in sound reason, sound morals, or sound law, between her legal relation to the parent and that of a chauffeur employed by him for the same purpose. The fact that the agency was not a business agency nor the service a remunerative service has no bearing upon the question of liability. * * * In running his vehicle she was carrying out the general purpose for which he owned it and kept it. No other element is essential to invoke the rule respondeat superior. We think that the instruction which is criticised in the Doran Case is in itself a complete answer to the opinion. It declared the use of the machine for the purpose for which it was owned, by the person authorized by the owner to so use it, a use in the owner’s business. 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.” (Birch v. Abercrombie, supra.)

3. Additional rulings of a procedural character other than as involved in the questions above discussed are assigned -as error, some of which require notice.

Technically it was error, though not very substantial, to [6] permit Mrs. Barron to testify to the usual charge by Christian Science practitioners, in the absence of a showing that Mrs. Lewis was accustomed to make such charges.

Nor should the court have stricken Chester Steele’s answer [7] to the effect that the appearance of Mrs. Lewis was so sudden the machine could not have been stopped in time to avoid striking her even if its speed had not exceeded four miles an hour; he was sufficiently qualified to speak, and the answer tended to show that the accident was not due to excessive speed, assuming that speed to have been eight or ten miles an hour, as claimed by the defendant.

We also think it was proper for the defendant to show, as he [8] attempted to do by Kiser, that, when first descried by the occupants of the automobile, Mrs. Lewis’ actions were such as to create the impression that she was waiting for the westbound car, and would therefore have no occasion to cross the intersection'of Park and Columbia Streets.

To avoid the prejudice which might arise from the imputation [9] of heartlessness or undue haste occasioned by the fact that the machine proceeded to the Columbia Gardens, and that Ralph Steele there danced once or twice, the defendant sought to show that inquiry had been made by Chester Steele at the house of Mrs. Lewis and was informed that her injuries were not serious. This, under the circumstances, should' have been permitted, in our opinion. What Ralph did at the Gardens was wholly immaterial, but, having been shown, the defendant was entitled to offset its effect. The jury should have been directed, as requested by offered instruction No. 30a, to ignore it altogether.

As the record is presented, we find -no merit in the other assignments. Many of them relate to evidence or instructions touching contributory negligence, which, as a defense, was not in the case, and these doubtless will not recur.

The judgment and order appealed from are reversed and the cause is remanded for a new trial.

Reversed and remanded.

Me. Cheep Justice Beantly and Me. Justice Holloway concur.