McDowell v. Hurner , 142 Or. 611 ( 1932 )

The family car doctrine which insists that a member of the family while driving the family car upon a frolic of his own is the agent of the parent-owner of the car seems to me to do violence to well-established principles of agency. The real relationship between the parent and the child under such circumstances is that of bailor and bailee. If it is desirable to hold the parent-owner of the family car liable for its negligent operation by some other member of the household, and if established principles render this impossible, then it would seem better to create a new tort liability than to distort established principles. However, there is available the dangerous instrumentality doctrine. It was applied in Southern Cotton OilCo. v. Anderson, 80 Fla. 441 (86 So. 629, 16 A.L.R. 255). It regards the automobile in its real character; that is, as a dangerous instrumentality. In applying this principle of law, the courts reason that when an owner intrusts another who is incompetent with a highly dangerous agency he puts in the latter's power to mismanage it, and that so long as it is in the custody of the other the owner should be responsible for any injury resulting from the custodian's negligence. It may be true that an automobile standing idle in a garage is quite harmless; see, however, the review of Brody's Ltd. v. Canadian NationalRailway Co., 1 Western Weekly Reports, 715, in 73 Sol. J. 506. But a family car is never purchased for the purpose of storage. In determining whether such a vehicle is dangerous, we should take note not only of the character of the thing itself but also of the purposes for which it was purchased and the conditions under which it will be operated. Statistics proclaim loudly that the automobile in operation is a dangerous instrumentality. The ever-increasing number of laws regulating the operation of automobiles, requiring the driver to obtain a license, report accidents, obtain casualty insurance, etc., enacted for the purpose of preventing accidents, indicates that the legislative assemblies also regard the automobile as a dangerous instrumentality. These circumstances show that the holding of the Florida court is based upon a sound premise. While the family car doctrine has been criticized as a distortion of the rules of agency, the application by the Florida court of the dangerous instrumentality doctrine to automobiles has been commended; for instance in 2 Va. Law Rev. 189, we find: "The symmetry of the law would have been better preserved and such dodging and explaining avoided, if the courts had at the outset held the automobile a dangerous instrumentality and based liability on that doctrine, or * * *." In 8 N.C. Law Rev. 256 the writer states: "That the courts should use well-established legal principles as a basis for augmenting the car owner's liability seems most natural and logical. However much violence may have been done by them to the doctrine of respondeat superior in formulating the family purpose doctrine, their course of action is to be commended rather than criticized in view of the desirability of the result reached. Perhaps it may be said that the same desired end could have been attained and with less embarrassment if the courts, instead of using the agency camouflage to give stability to the family purpose doctrine, had adopted the policy of the Florida court and had held that a motor vehicle is an inherently dangerous instrumentality in its use and operation". In Foster v. Farra et al., 117 Or. 286 (243 P. 778), this court made express mention of the dangerous nature of an automobile. The basis of the dangerous instrumentality doctrine is the negligent act of intrusting custody of the dangerous implement to one who is incompetent to properly manage it, and not a belief that the custodian is the agent of the owner.

I agree with the others that our previous decision erred, but have been brought to this conclusion by the application of the aforementioned principle of law.