Wilcox v. Wunderlich , 73 Utah 1 ( 1928 )

James Wilcox, a boy 8 years of age, was struck and run over by an automobile driven by Herman Wunderlich, Jr., at Salt Lake City, on May 13, 1924, and as a result thereof died three days later. His father, the plaintiff, brought this action against the defendants to recover damages for the death of his son, upon the grounds of alleged negligence. The defendants sued were Herman Wunderlich, Herman Wunderlich, Jr., Moroni Heiner, and Frank Heiner. The case went to trial before a jury. At the close of the plaintiff's evidence a nonsuit was ordered, on their motion, in favor of the defendants Moroni Heiner and Frank Heiner. The case proceeded against the other defendants, resulting in a verdict and judgment in favor of the plaintiff and against Herman Wunderlich and Herman Wunderlich, Jr., for $3,885.55 damages, etc.

There are two appeals. The defendants Herman Wunderlich and Herman Wunderlich, Jr., have appealed from the judgment against them, and the plaintiff has appealed from the judgment of dismissal entered upon the nonsuit in favor of Moroni Heiner and Frank Heiner.

The principal errors assigned and argued in support of the defendant's appeal are that the trial court erred in denying their separate motions for a nonsuit, for a directed verdict, and for a new trial.

The defendants Herman Wunderlich and Herman Wunderlich, Jr., are father and son. The son drove the automobile involved in the accident. The father was not present. The action was based upon the theory that the injury complained of resulted from the actual negligence of Wunderlich, Jr., at the time of the accident, and that by reason of other facts to be hereinafter stated Wunderlich, Sr., was connected with and answerable for his son's negligence. It was therefore incumbent upon the plaintiff to establish negligence on the part of Wunderlich, Jr., at the time of the accident, and, in this respect, it is contended the plaintiff failed.

The evidence was conflicting in some respects, but there was substantial evidence which would warrant the jury in finding the facts, as follows: The accident occurred at about 9 o'clock p.m. on May 13, 1924, at the intersection of East Fifth street and Ramona avenue, in Salt Lake City. The automobile was driven north on East Fifth street to the intersection, and then turned west into Ramona avenue by Herman Wunderlich, Jr., who at the time was 2 months under 16 years of age. A statute in force made it unlawful for any person under 16 years of age to drive a motor vehicle upon any public highway. The automobile had no headlights burning. This was in violation of a city ordinance then in force requiring them at that time of day. At the northwest corner of the intersection an elevated electric arc light was burning, which lighted up the vicinity so that passing automobiles could be seen. As he turned into Ramona avenue from the east side of East Fifth street the driver could and did see a group of children playing at the northwest corner of the intersection, some of whom were running. He proceeded, however, without giving any signal of his approach. One of the children, James Wilcox, a boy 8 years of age, ran south along the pedestrian's path or crossing into Ramona avenue, and, either while going south or after he had turned and was going back towards the group of children, and when near the center of the avenue, was struck by the automobile and fatally injured.

It is contended (1) that the evidence does not support the finding of negligence on the part of the driver of the automobile; (2) that his negligence, if any, was not the proximate cause of the injury; and (3) that the injured boy, by suddenly running in front of the automobile, was guilty of such contributory negligence as to preclude a recovery for his death.

The specific acts of negligence pleaded and relied upon by the plaintiff were that the driver, on account of his age, was prohibited by law from driving an automobile upon the streets at all; that the automobile had no headlights burning; that the driver carelessly and negligently failed to 9, 10 keep a proper lookout for persons who might be crossing the avenue, and carelessly and negligently failed to give any warning signal of the approach of the automobile.

There was substantial evidence in support of each of the grounds of negligence, and that such acts constitute legal negligence is too plain for argument. The driving of an automobile on a public street in the nighttime without headlights is negligence itself as a matter of law. O'Brien v. Alston,61 Utah 368, 213 P. 791. And it was easily a jury question under all the circumstances whether the driver kept a sufficient lookout for the children there present, or should have given a signal or warning of his approach. See Herald v. Smith,56 Utah 304, 190 P. 932; Huddy on Automobiles (5th Ed.) §§ 438, 448; Berry on Automobiles (5th Ed.) § 201.

The question of whether the negligence of the driver was the proximate cause of the accident and injury complained of was also properly submitted to the jury. The contention that the presence of the street light at the place of the accident, which made passing automobiles visible, eliminated defendant's lack of headlights as an efficient causal agency, and that the circumstance of the boy running in front of the 11, 12 automobile was such that the giving of a warning or keeping a lookout would not have prevented the accident, cannot be sustained. Headlights are required on an automobile at night, not only to enable the driver to see his way, but for the equally important purpose of warning others in its course of its approach; and herein it was for the jury to say whether headlights on the automobile in question, at the time, would have warned the boy of the danger and thus have avoided the accident.

The evidence concerning the manner in which the boy ran in front of the automobile was not, necessarily, that he ran suddenly there without warning to the driver under such circumstances that a collision was unavoidable. There was evidence that two boys were running from some distance towards the street crossing, and that the boy who was injured ran, as some of the witnesses said, into the avenue, turned around, and was returning when he was struck, all of which could have been seen by the driver of the car. It was open to the jury, under the circumstances, to say that, especially when proceeding at night without headlights, reasonable care on the part of the driver required him to sound a warning of his approach and to keep a proper lookout for children crossing the avenue, and that either would have probably prevented the accident, and that therefore the failure to do either was the proximate cause of the accident.

The question of contributory negligence on the part of the injured boy was also for the jury. Under the facts in the case, it could not properly be decided as a matter 13 of law. Gesas v. O.S.L.R. Co., 33 Utah 156,93 P. 274, 13 L.R.A. (N.S.) 1074; Herald v. Smith, Supra; Briley v. Nussbaum, 122 Kan. 438, 252 P. 223.

The next question to be considered upon the defendant's appeal is the liability of the defendant Herman Wunderlich, who was not present at the time of the accident. It is contended by his counsel that he is not liable, even though the 14 accident and injury resulted from the negligence of his son, who drove the car. It is undisputed that, about two months before the accident occurred, the defendant Herman Wunderlich, who was a dealer in automobiles, conditionally sold and delivered to his son, Herman Wunderlich, Jr., whom he knew was under the age of 16 years, and Frank Heiner, who was also under 16 years of age, the automobile afterwards involved in the accident in question, knowing and expecting that they would drive and use it upon the public streets, in violation of law. He also aided in having the car registered and licensed in the name of Frank Heiner Co. and knew of and consented to his son, Herman Wunderlich, Jr., driving it, both before and on the day of the accident. The boys paid $75 as part payment for the car, and promised to pay the remainder of $75 in installments. The father retained the title to the car, and after the accident took possession of and sold it to another. Whether these facts, in connection with the negligence of the son who drove the car, are sufficient in law to establish liability against the father, and support the judgment against him, is the subject of opposing contentions, and is the question now to be decided.

Parents, as such, are not liable for the torts of their minor children. Some other legal ground is essential to establish their liability. A familiar principle of law, by which liability is made out against them, is the doctrine of agency or master and servant existing between parent and child. The application of this rule is illustrated by many cases, where the wrongful act of the child is connected with the performance of some purpose of business of the parent which the latter has authorized. The "family purpose" doctrine, as applied to the use of automobiles, essentially rests upon this principle. But here we have no such question. It is not claimed, and there is no proof, that Wunderlich, Jr., was engaged in any purpose or business of his father when the accident in question occurred.

The doctrine of liability based upon the relation of master and servant is therefore eliminated from this inquiry. But there is another rule of liability, independent of the doctrine of respondant superior, which arises when one knowingly intrusts an automobile to another, though not his agent or servant, who is so incompetent as to the handling of the same as to convert it into a dangerous instrumentality, in which case liability rests upon the combined negligence of the person so intrusting the machine to the incompetent driver and of the driver in its operation. In Berry on Automobiles (5th Ed.) § 1197, P. 884, the rule is thus stated:

"Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same, on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine. An automobile is a machine that is capable of doing great damage, if not carefully handled, and for this reason the owner must use care in allowing others to assume control over it. If he intrusts it to a child of such tender years that the probable consequence is that he will injure others in the operation of the car, or if the person permitted to operate the car is known to be incompetent and incapable of properly running it, although not a child, the owner will be held accountable for the damage done, because his negligence in intrusting the car to an incompetent person is deemed to be the proximate cause of the damage. In such a case of mere permissive use, the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner and the driver; negligence of the owner in intrusting the machine to an incompetent driver, and of the driver in its operation."

A few of the numerous cases supporting this text areGardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380; Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128; Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 50 A.L.R. 1425; Rocca v. Steinmetz, 61 Cal.App. 102, 214, P. 257; Mitchell v. Churches, 119 Wn. 547, 206 P. 6, 36 A.L.R. 1132.

The foregoing authorities relate to instances where the person to whom the machine was intrusted was in fact incompetent to handle it. They are cited to illustrate the general principle of the doctrine under consideration. In the case at bar the boy was not proved to be in fact an incompetent driver. It was merely proved that he was under 16 years of age and within the prohibition of Comp. Laws Utah 1917, § 3982, as amended by Laws Utah 1921, c. 83, which prohibits persons under 16 years of age from operating such vehicles.

The defendants put in evidence that the boy had worked with and driven automobiles for several years before, and his father gave it as his opinion that the boy was a good, careful driver. But the testimony produced by the plaintiff, 15, 16 which the jury had the right to and evidently did believe, was that on the occasion in question the boy operated the car in a very careless and reckless manner. The competency of a person of prohibited age to drive an automobile is not open to inquiry as a question of fact. Express law determines the incompetency of such persons. A young person may have superior physical skill and ability in operating automobiles, and from lack of that discretion and caution which comes from experience and maturity be a peril on the public highway. It is common knowledge that the thoughtless and daring youth is inclined to "take a chance." He is more likely than maturer persons to drive at night without lights, to neglect sounding his horn when the situation requires it, and to omit looking out for pedestrians. For these and other reasons, the statute prohibits and penalizes the driving of automobiles on the public streets by all persons under 16 years of age.

An automobile in the hands of a competent driver may not be deemed in law an inherently dangerous instrument. But in the hands of an incompetent person it is in fact and in law highly dangerous, and capable of great harm to others. The Legislature by the prohibitory act has in effect declared all persons under 16 years of age to be incompetent and unfit to drive automobiles on public streets. And this is not changed or overthrown in the case of a boy of 15 whose father thinks he is a good careful driver.

A fundamental principle of law of universal recognition is illustrated in Bishop on Noncontract Law, § 151, viz.:

"Loaded firearms are dangerous, if not properly handled. And one is careless who intrusts a loaded gun to a 12-year old child; he should first draw the charge. Therefore, if it goes off in the hands of such child, inflicting harm on another, he must answer for the wrong."

Is it not consistent with this doctrine to say: Automobiles in the hands of incompetent persons on the public streets are highly dangerous. The law prohibits children under 16 years of age from driving automobiles, because they are deemed incompetent to safely operate them. And one is careless who intrusts an automobile to a child of such age; he should respect the law and not do so. Therefore if, through the child's carelessness and negligence in the driving of the automobile, harm is inflicted upon another, he must answer for the wrong. Upon the ground that the prohibitory statute itself amounts to a conclusive declaration that the prohibited person is incompetent and unfit to operate the vehicle, liability is established against one who knowingly intrusts an automobile to one of the prohibited age, without other proof of his incompetency, when injury results from the negligent operation of the automobile by the latter. Rush v. McDonnell, 214 Ala. 47, 106 So. 175; Walker v. Klopp,99 Neb. 794, 157 N.W. 962, L.R.A. 1916E, 1292; Laubach v.Colley, 283 Pa. 366, 129 A. 88; Hopkins v. Droppers,184 Wis. 400, 198 N.W. 738, 36 A.L.R. 1156; Schultz v. Morrison,91 Misc. 248, 154 N.Y.S. 257; La Rose v. Shaughnessy IceCo., 197 A.D. 821, 189 N.Y.S. 562; Burrell v. Horchem,117 Kan. 678, 232 P. 1042; Repczynski v. Mikulak (Ind.App.)157 N.E. 464; Berry on Automobiles (5th Ed.) § 1198, p. 886; Huddy on Automobiles (5th Ed.) § 662, p. 863.

The claim that the defendant Herman Wunderlich was not at the time of the accident the owner of the car, but had previously sold and delivered it to his son, is not of any legal significance. The essence of the negligent act which makes the father liable is the furnishing and 17 placing in the hands of the minor the thing which the law prohibits him from operating, and the legal form of the transaction is of no consequence. The law imposes the legal duty upon every one to not knowingly place an automobile in the hands of an incompetent person for use upon the public highway, and this duty is violated by a sale and delivery, or a gift, as well as by a loan.

It is argued that it does not appear that the act of the father in placing the car in the hands of his son was the proximate cause of the injury complained of. This presents no serious difficulty. The causal connection is sustained, because the father was bound to anticipate harm to 18 others from the careless handling of the car by his son, who was by law prohibited on account of his age from driving the car. The essence of the doctrine is that injury to others through the carelessness and incompetency of the driver is the probable consequence of placing an automobile in such hands, and, when such anticipated carelessness and resulting injury do in fact follow, the relation of cause and effect between the act of placing the car in incompetent hands and the injury is sufficiently established to constitute the former the legal proximate cause of the latter.

But it is said that the son had driven cars before without negligence, and that in his father's opinion he was a good, careful driver. The statute, however, in effect declares that all persons under 16 years of age, no matter what their fathers may think about it, are incompetent and unfit to drive automobiles on the public highways. It may be that the father did not, in fact, anticipate harm from the son's driving the car. But a man is not a law unto himself. The law fixes the duty of men, and herein the law, by declaring the son incompetent, fixed upon his father a duty to not place a car in his hands. It seems clear that when this duty was violated, and the negligence which the law requires to be anticipated did follow, the father must be held answerable as having proximately caused it.

If A knowingly places an automobile in the hands of a drunken driver for use on the public highway, and injury results to B from the reckless and careless operation of the car by such driver, is it incumbent upon B, in order to recover from A, to prove that the reckless and careless operation of the car occurred solely because the driver was drunk? If so, how would he go about it? Would it avail A to prove that the driver on numerous previous occasions, had safely driven cars when drunk, and that in his opinion he was a good, careful driver, even when he was drunk?

It is certainly a violation of legal duty, and negligence in law, to knowingly place an automobile in the hands of a person to be driven on the public highway, when it is known that all persons of the class to which he belongs, on account of their incompetency as a class, are expressly prohibited from so driving such automobiles. And liability follows from such violation of legal duty and negligence, when the anticipated result occurs, viz. when the driver proves in fact to be careless and harm results to another. In such case the question of whether the carelessness of the driver occurred by reason of his legal incapacity is not a matter of fact depending on proof. It is a deduction of law arising out of the situation. Because such persons are likely to be careless they are prohibited from driving cars at all, and when they do drive cars and prove careless, such carelessness is legally imputable to the disability prescribed by statute.

It follows that liability for the injuries complained of was properly adjudged against both defendants, Herman Wunderlich and Herman Wunderlich, Jr., upon the grounds of their combined negligence. The negligence of the father in wrongfully placing the automobile in the hands of his son, and the negligence of the son in operating it, together and in sequence, made up the proximate cause of the accident, without either of which it would not have occurred.

Other complaints of these appellants relate to supposed errors and conflicts in the instructions to the jury, one only of which deserves notice. The trial court instructed the jury to the effect:

"That if a minor child resides at the home and is under the control of his father, it is the duty of the latter to restrain such minor child from violating a statute, and if such father expressly authorizes such child to violate a statute, or, knowing that he is violating a statute, fails to restrain him therefrom, and so impliedly consents thereto, the father is liable for the consequences thereof, if it is the proximate cause of injury to others."

The complaint is that the instruction is erroneous, because a father is under no active legal duty to restrain his minor child from doing a wrong. A general exception only was taken to the whole instruction. No particular part was pointed out and excepted to as faulty. The whole instruction is not bad, for that part which states that the father is liable if he "expressly authorizes such child to violate a statute" is correct. It is settled by many cases in this court that, unless the whole instruction is bad, a general exception is unavailable to have any particular part reviewed on appeal. Farnsworth v. U.P.Coal Co., 32 Utah 112, 89 P. 74; State v. Overson, 55 Utah 239,185 P. 364; Hansen v. O.S.L.R. Co., 55 Utah 577,188 P. 852. But, even if the matter was reviewable in this court, the error, for other reasons, must be disregarded. As an abstract proposition, the instruction is in part objectionable and cannot be approved. Liability of a parent for the wrong of his child does not arise because the parent merely fails to restrain the wrong. See Hopkins v. Droppers, 191 Wis. 334, 210 N.W. 684, 49 A.L.R. 1519. The ground of liability is independent of the relationship, and rests upon affirmative acts, which connect the father with the wrong complained of.

The erroneous instruction, however, was harmless and immaterial in this case. The defendant Wunderlich, Sr., himself admitted that he delivered the automobile in question to his son, knowing that he was of prohibited age, and that he intended to use it on the public streets in violation of law; that he aided in having the car registered, and knew of and consented to his son's driving it, both before and on the day of the accident. These admitted facts conclusively established the relation of the father to the wrongs complained of, and his liability therefor, so that no question on that point was left for the jury to decide. The giving of the erroneous instruction was, therefore, without prejudice to the defendant.

It is said, however, that the instruction authorized the jury to find a verdict for the plaintiff without a finding of negligence on the part of the driver of the automobile, because nothing is said in the instruction respecting the necessity of negligence to warrant a recovery. The whole of the law of the case need not be stated in one paragraph. In instruction No. 9 the court points out specifically that the liability of Herman Wunderlich, Sr., is dependent upon a finding of negligence by Herman Wunderlich, Jr., which proximately contributed to the injuries complained of, and in instructions Nos. 10 and 11 charges that, before any recovery can be allowed, they must find that Herman Wunderlich, Jr., was guilty of one or more of the specific acts of negligence alleged, specifying them, and that, unless the death of James Wilcox was proximately caused by the negligence of the defendant Herman Wunderlich, Jr., the plaintiff cannot recover, and the verdict must be in favor of the defendants, "No cause of action."

To say that the jury was misled by instruction No. 7 into finding a verdict against Herman Wunderlich, Sr., without regard to negligence on the part of Herman Wunderlich, Jr., is to say that the jury wholly ignored the other parts of the charge, which plainly pointed out that such could not be done. And there is not the slightest ground for such a statement. That the jury did find negligence on the part of Wunderlich, Jr., is attested by the verdict against him. It is a universal rule, repeatedly stated and acted upon by this court, that instructions to juries must be considered and interpreted as a whole, and it is enough when the entire charge fairly states the law applicable to the case.

Instruction No. 7 is erroneous, because it incorrectly states one feature of the liability of a father for the wrongs of his minor child. As before seen, under the express admissions of fact by the father in this case, that error was harmless and immaterial. But the instruction is not erroneous because it does not contain other conditions of liability, when such conditions are clearly set out in other parts of the charge.

The other objections are formal, and do not involve any substantial right. A careful consideration of the instructions as a whole discloses no serious or prejudicial error respecting the matters complained of.

Plaintiff's appeal from the judgment after nonsuit in favor of defendants Moroni Heiner and Frank Heiner must fail. Moroni Heiner and Frank Heiner are father and son. At the time in controversy Frank Heiner was 15 years of age. Moroni 19 Heiner did nothing to aid or encourage his son in buying the automobile in question, but objected to it. After his objections were unavailing, he, at the request of Wunderlich, Sr., paid half the premium for a liability insurance policy issued to Frank Heiner Co. upon the automobile. Thereafter he knew that his son was driving the car and did not prevent it. There was no claim that Moroni Heiner had any knowledge that Herman Wunderlich, Jr., was under 16 years of age at the time in question.

With respect to Frank Heiner there was some evidence from which it might be inferred that he was riding in the car at the time of the accident, although the positive and direct evidence was to the contrary. But, if present, there is no claim that he was driving the car, or that any act of his, at the time, contributed to the accident. And there was no 20 evidence that he knew, or had reason to believe, that Herman Wunderlich, Jr., was under 16 years of age.

Because Moroni Heiner did no overt or affirmative act to aid in placing the car in the hands of two boys, but objected to it, and did not know of the nonage or incapacity of Wunderlich, Jr., I think the case fails against him. And liability against Frank Heiner was not established, because he did not personally contribute to the accident at the time by 21 any act of negligence. He could not be held in combination with the negligence of Wunderlich, Jr., the driver, for placing the car in the driver's hands, because it did not appear that he had any knowledge of the latter's age disability; and there could be no liability based upon any agency, or joint venture, or contractual relation between himself and Wunderlich, Jr., for the reason that infants are not liable, directly or indirectly, on their contracts, and liability on this score necessarily involves the recognition of a contract. 31 C.J. 1091; 14 R.C.L. 259-261; Burns v. Smith, 29 Ind. App. 181,64 N.E. 94, Am. St. Rep. 268; Covault v. Nevitt, 157 Wis. 113,146 N.W. 1115, 51 L.R.A. (N.S.) 1092, Ann. Cas. 1916A, 959.

The trial court did not err in granting the nonsuit in favor of Moroni Heiner and Frank Heiner.

Both judgments appealed from should be affirmed.