Hubert v. Harpe , 181 Ga. 168 ( 1935 )

Bell, Justice.

The Court of Appeals (in Case No. 23642) certified the following question: “Where a father keeps and maintains an automobile to be used for the comfort and pleasure of his family, including his wife and minor children, and where he permits a non-dependent, self-supporting adult son to reside in his home without charge, whom he also as a matter of custom voluntarily permits to use and drive the automobile for the comfort and pleasure of the son upon the same footing as the father’s wife and minor children, can the father be held liable for a personal injury to a third person proximately caused by the negligent operation of the automobile by such son, where at the time of the injury the son was driving the vehicle for his own recreation and pleasure by the express or implied permission of the father? See, in this connection, Griffin v. Russell, 144 Ga. 275 [87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994]; Stanford v. Smith, 173 Ga. 165 [159 S. E. 666]; Bryant v. Keen, 43 Ga. App. 251 [158 S. E. 445]; Kennedy v. Manis, 46 Ga. App. 808 [169 S. E. 319].” This question is answered in the affirmative.

In Griffin v. Russell, supra, the petition alleged the following: A woman owned an automobile, and had a minor son. She allowed her son to run and operate the car. On a day named the minor son was the chauffeur in charge of the car, operating it for his mother, the owner, and running it on the public road with the knowledge and consent of his mother. The boy, “who was the agent of the said [owner] as hereinbefore alleged, driving said car,” negligently caused it to collide with a buggy in which the plaintiff was riding, causing injury to him and to the buggy and harness. The injury was caused by the carelessness and negligence and by acts and omissions to act on the part of the mother and on the part of the son, “her agent and chauffeur • in charge of said car.” By amendment the plaintiff added the following: “Defendant kept said automobile for the comfort and pleasure of her family, including Jim Bussell [the son], a member of said family. He was driving said automobile at the time of the injury herein complained of, and was driving same for the comfort and pleasure of himself and friends, who were riding with him, by and with the consent of the owner of said car, the defendant.” It was held that the petition stated a cause of action. In the opinion delivered by Mr. Justice Lumpkin it was said: “It may be taken as settled law in this State that a father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relation of parent and child. Chastain v. Johns, 120 Ga. 977 (48 S. E. 343, 66 L. R. A. 958). And this accords with the rulings of other coiirts on the subject. A child, however, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles governing the relation of master and servant, or principal and agent. The contested question in cases like the one under consideration usually is whether or not the facts show such a relation and liability arising to the parent therefrom. . . An agent or servant is frequently employed by contract or express agreement; but this is not necessary to establish the relation. It may arise by implication as well as expressly. . . If [the mother] kept the automobile to be used for the comfort and pleasure of her family, including her minor son as a member thereof, such use was her business or affair. . . If she had placed a third person in charge of the car as a chauffeur to drive it for the purpose for which it was kept, he would have been her agent or servant, and she would be liable for the negligent manner in which he drove the car. If, instead of doing this, she allowed her minor son to act as her chauffeur or agent for the purpose of driving the car, she would likewise be liable for his negligence in so doing. If a father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose. How many of the family must be riding in the machine in order to make it a family use ? If the boy should carry his sister for a ride, this would evidently be such use. Suppose that the sister should determine not to go, and he should go alone, would the use cease to be a family use? Certainly not all of the family have to be riding in the machine, to make it a family use. If two are sufficient for that purpose, why not one? But it may be said that here the boy was using it for the comfort and pleasure of himself and friends, who were riding with him, even though by and with the consent of the owner of the car. If it would be a family use for the boy to ride alone, it is difficult to perceive how taking his friends with him would make it less so, especially if with the consent of the owner. Suppose that the boy should start to ride with his sister, and at the last moment she should determine not to go, and that the owner should consent for him to substitute a friend or friends of his own in lieu of his sister, would this change the whole status and relieve the owner of liability, where liability would have existed before? In this case it was alleged that on the occasion when the injury took place the boy was the chauffeur or agent of the owner, in charge of the car, operating it for the owner. It seems unquestionable that the demurrer should not have been sustained.”

As shown in other parts of that decision, the court examined numerous outside authorities, including several cases in which a contrary view had been taken. The two lines of authority were carefully considered, and a deliberate choice was made between them. The decision in that case, though not concurred in by all the Justices, was rendered nearly twenty years ago, during which period the legislature has taken no action modifying the rule stated; and the decision has been followed by the Court of Appeals in a number of cases. Quite recently this court denied petitions for certiorari to review the decisions in Ficklen v. Heichelheim, 49 Ga. App. 777 (176 S. E. 540), and Ficklen v. Watkins, 49 Ga. App. 779 (176 S. E. 541), in each of which a mother was sued for the negligent operation of her automobile by her minor son, and in which the Court of Appeals applied the' principle enunciated in Griffin v. Bussell, supra. In all the circumstances, the principle of stare decisis should be given some weight, and the more especially since the decision under the consideration is well supported by authority. Some courts have refused altogether to permit recovery in such case, while others, after first holding in favor of liability, have receded from their -former position and announced a contrary doctrine. Cf. Hays v. Hogan, 273 Mo. 1 (200 S. W. 286, 32 A. L. R. 1490). This court adheres to its former decision. As ■ will have been observed, the decision was based squarely upon the relation of master and servant or principal and agent, and in the present case the principal inquiry is whether, under the facts stated, such relation existed between the defendant father and his non-dependent, self-supporting adult son, who was. driving the automobile at the time of the injury. A father is under no legal obligation to furnish an automobile for the comfort and pleasure of his child, whether minor or adult; and if he does so, it is a voluntary act on his part. In every such ease the question is whether the father has expressly or impliedly made the furnishing of an automobile for such purpose a part of his business, so that one operating the vehicle for that purpose with his consent, express or implied, may be considered as his agent or servant. A child, whether minor or adult, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles governing the relation of master and servant or of principal and agent. Even in jurisdictions where the doctrine of liability is recognized, it would seem that no definitely fixed rule has been applied, but that every case must stand upon its own facts as to what the parent has voluntarily assumed as a part of the business to which he will devote himself and to which he will have his vehicle applied. In support of the views expressed above, see: Harmon v. Haas, 61 N. D. 772 (241 N. W. 70, 80 A. L. R. 1131); McDowell v. Hurner, 142 Or. 617 (20 Pac. (2d) 395, 88 A. L. R. 578); King v. Smythe, 140 Tenn. 217 (204 S. W. 296, L. R. A. 1918F, 293); Birch v. Abercrombie, 74 Wash. 486 (133 Pac. 1020, 50 L. R. A. (N. S.) 59); Watson v. Burley, 105 W. Va. 416 (143 S. E. 95, 64 A. L. R. 839).

In the present case the father is not relieved from liability merely because the son was an adult and was self-sustaining. It appears that the father kept and maintained an automobile for the comfort and pleasure of his family, including his wife and minor children, and that as a matter of custom he also permitted this adult son, who resided in the same home with him, to use and drive the automobile for the comfort and pleasure of the son, upon the same footing as the wife and minor children. At the time of the injury in question the son was driving the automobile, with the express or implied permission of the father, for his own recreation and pleasure, within the general purpose for which the vehicle was kept and maintained. Then, by what principle of law can the mere matter of age determine the question of liability? The extent to which the automobile might be used for the comfort and pleasure of the family was a question to be settled by the father; and it was also a matter for his own determination as to whether he would include his adult son among the number whose comfort or pleasure he would promote by the use of such vehicle. According to the reasoning in Griffin v. Russell, supra, if the father, instead of permitting the son himself to drive the car, had furnished a chauffeur to take his son for a ride for the pleasure and recreation of the son, he would be liable for the negligence of the chauffeur while conducting such business for the father as master. If the father, instead of supplying a chauffeur, expressly or impliedly permits the son to act as ‘driver, the son would in that case become the servant, provided there is no other change in the circumstances. If the transaction is one of lending, then the father would not be liable. In Watson v. Burley, supra, the court, after quoting definitions of the word “family,” said: “The test is not whether the child is adult or minor, but whether he was using the car for a purpose for which the parent provided it, with the permission of the parent, either express or implied.” The question whether the child is an adult is, of course, a circumstance to he considered in determining whether the relation of master and servant really exists. The decision in the Watson case quotes with approval the following from Berry on Automobiles (5th ed.), § 1357: “The question is whether the child, be he an adult or a minor, was acting for the parent, was using the car for a purpose for which the parent provided it, and the evidence to support the affirmative of this issue is not different when the child is an adult than it is when the child is a minor.” In Harmon v. Haas, supra, it was said: “The fact that Katherine had reached her majority is not necessarily controlling. Paraphrasing Carpenter v. Dunnell, 61 N D. 263 (237 N W. 779), a daughter residing with her parents does not cease to be a member of the family merely by reason of the fact that she has reached her majority. The point is not whether the daughter is an adult or a minor, but whether she was using the car for a purpose for which the parents provided it, with authority, express or implied. Katherine ■ was using the car with the full knowledge of the father, who had expressly granted its use to the girls for this trip to Fargo; and the father knew that Katherine was to do the driving.” See also Olberg v. Kroehler, 1 Fed. (2d) 140; Gates v. Mader, 316 Ill. 313 (147 N E. 241); Linch v. Dobson, 108 Neb. 632 (188 N. W. 227); Warren v. Norguard, 103 Wash. 284 (174 Pac. 7).

If the furnishing of an automobile for the purpose stated - in the question is within what may be said to be a “business” of the owner, one to whom the car is entrusted for--such purpose is not a bailee, as in a case of lending, but is a servant or agent. If, on the other hand, the car is furnished by the owner merely as an accommodation to the other, with no interest or concern in the purpose for which the other will use it, then its use, whether for recreation or otherwise, is not within the business of the owner, and the transaction is a mere bailment. There is a vital distinction between the two cases here supposed, and the failure to recognize it has apparently been an important factor in leading some of the courts to conclusions which, it is respectfully submitted, are unsound. In Griffin v. Russell, supra, it was said that the word “business” is commonly employed in connection with an occupation for livelihood or profit, but is not limited to such pursuits; and it would seem that the principles' there recognized would be applicable, whether the child is a minor or an adult. Indeed, in the two lines of decisions in eases of this type, the difference between the courts depends not so much upon the minority or majority of the child as upon opposite opinions as to the soundness of what has been loosely called “the family-car doctrine.” Upon the latter question the courts are hopelessly divided, the following being some of the decisions expressing the negative view: Gordon v. Rose, 54 Idaho, 502 (33 Pac. (2d) 351, 93 A. L. R. 984); Myers v. Shipley, 140 Md. 380 (116 Atl. 645, 20 A. L. R. 1460); Smith v. Callahan, 34 Del. 129 (144 Atl. 46, 64 A. L. R. 830); Van Blaricom v. Dodgson, 220 N. Y. 111 (115 N. E. 443, L. R. A. 1917F, 363); Bradley v. Schmidt, 223 Ky. 784 (4 S. W. (2d) 703, 57 A. L. R. 1100); Hays v. Hogan, supra; Stumpf v. Montgomery, 101 Okla. 257 (226 Pac. 65, 32 A. L. R. 1490); Zeidler v. Goelzer, 191 Wis. 378 (211 N. W. 140); Watkins v. Clark, 103 Kan. 629 (176 Pac. 131).

In Van Blaricom v. Dodgson, supra, the Court of Appeals of New York, speaking against the doctrine, said: “We have never heard it argued that a man who kept for family use a horse or wagon or boat or set of golf-sticks had so embarked upon the occupation and business of furnishing pleasure to the members of his family that if sometime he permitted one of them to use one of those articles for his personal enjoyment, the latter was engaged in carrying out, not his own purposes, but, as agent, the business of his father.” In Smith v. Callahan, supra, the same view was presented in different language as follows: “And yet, we venture to assert, courts which apply the logic to the case of an automobile would hesitate long before applying it to the case of a baseball-bat, for instance, supplied by a father for the recreation of his boys.” In Watkins v. Clark, supra, it was said: “The development of the law on this subject has been attended by a rather slow process of clarification. When- the automobile was new and strange, and was regarded with some wonder and considerable fear, there was a tendency to look upon it as a dangerous thing, fraught with such possibility for harm that the owner should always be held responsible for its use. When it commenced to take the place of the family horse, this view had to be abandoned. The notion, however, of general liability on the part of the owner for rise of his car having been planted in the mind, it ’ lingered’there like a superstition. . . The sooner the courts settle down and deal on the basis of fact and actuality with a vehicle which has revolutionized the business and the pleasure of the civilized world, the better it will be, not only for society but for the courts.” These comparisons are so extreme as to border on the imaginary. When both the character and the uses of the several instruments are considered, it would seem to be utterly fallacious to compare an automobile with a boat, a set of golf-sticks, or a baseball-hat. And when, forsooth, did the automobile assume the gentle character of old Dobbin or fall into the harmless tread of the primitive wagon? The passing of its novelty and the improvement of its mechanism seem to have reduced but little, if any, 'the danger involved in its use, in view of the increase in speed and the more congested traffic.

Replying to the argument advanced by the New York Court of Appeals in Van Blaricom v. Dodgson, 220 N. Y. 111 (115 N. E. 443, L. R. A. 1917F, 363), the Supreme Court of Tennessee, in King v. Smythe, supra, said: “It seems to us that the foregoing reasoning is more concerned with what the learned court considered pure logic than with the practical administration of the law. If a father purchases an automobile for the pleasure and entertainment of his family, and, as Dr. Smythe did, gives his adult son, who is a member of his family, permission to use it for pleasure, except when needed by the father, it would seem perfectly clear that the son is in the furtherance of this purpose of the father while driving the car for his own. pleasure. It is immaterial whether this purpose of the- father be called his business or not. The law of agency is not confined to business transactions. It is true that an automobile is not a dangerous instrumentality, so as to make the owner liable, as in the case of a wild animal loose on the streets; but, as a matter of practical justice to those who are injured, we can not close our eyes to the fact that an automobile possesses excessive weight, that it is capable of running at a rapid rate of speed, and, when moving rapidly upon the streets of a populous city, it is dangerous to life and limb and must be operated with care. If an instrumentality of this kind is placed in the hands of his family by a father, for the family’s pleasure, comfort, and entertainment, the dictates of natural justice should require that the owner should be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained. A judgment for damages against an infant daughter or an infant son, or a son without support and without property, who is living as a member of the family, would be an empty form. The father, as owner of the automobile and as head of the family, can prescribe the conditions upon which it may be run upon the roads and streets, or he' can forbid its use altogether. He must know the nature of the instrument, and the probability that its negligent operation will produce injury and damage to others. We think the practical administration of justice between the parties is more the duty of the court than the preservation of some esoteric theory concerning the law of principal and agent. If owners of automobiles are made to understand that they will be held liable for injury to person and property occasioned by their negligent operation by infants or others who are financially irresponsible, they will doubtless exercise a greater degree of care in selecting those who are permitted to go upon the public streets with such dangerous instrumentalities. An automobile can not be compared with golf-sticks and other small articles bought for the pleasure of the family. They are not used on public highways, and are not of the same nature of automobiles.” To the same effect see the later decision by the same court in Schwartz v. Johnson, 152 Tenn. 586 (6) (280 S. W. 32). We are aware that the decision from which we have just quoted has been criticized; but the same is true of practically every other decision that has been written, either pro or con, upon the subject, including even now the present one, as in the able dissenting opinion filed herein.

In holding the owner liable in such case the courts do not invade the province of the legislature, but merely apply an established principle of the common law to new conditions, recognizing that the true law is not to be found in letter and form, but that spirit, substance, and growth must be considered. While we may not approve everything said in the preceding quotation, it clearly illustrates the life and force of the common law, and its adaptability to modern problems; and such is manifestly the real basis of that decision, without denominate terms to that effect. “It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.” Funk v. U. S., 290 U. S. 371 (54 Sup. Ct. 212, 216, 78 L. ed. 369, 93 A. L. R. 1136, 1142); 12 C. J. 178, § 5. The familiar statement that no rule of the common law can survive the reason on which it is founded is but a corollary of the greater truth that the common law springs from reason and necessity, shaping its rules to accomplish the ends of justice, in the light of usage and custom. Curtis v. Ashworth, 165 Ga,. 782, 793 (143 S. E. 111, 54 A. L. R. 1457); Ketelson v. Stelz, 184 Ind. 703 (111 N. E. 423, L. R. A. 1918D, 303, Ann. Cas. 1918A, 965). The probability of injury from the use of the simpler instrumentalities referred to is so negligible that to apply the master-and-servant rule of liability would be 'strained and needlessly vexatious, although, technically, at least the germ of the relation could be discovered, provided the father himself owned and maintained the instrument and as such proprietor was interested in the purpose of its use. 46 C. J. 1335-1337. With the advent of the automobile and the dangers arising from its operation, there is sound reason, and no assumption of authority, in applying the common-law principle of master and servant, where the vehicle, with the consent of the owner, is being actually operated for a purpose for which it is maintained, even though such purpose is only for pleasure or recreation. In Stanford v. Smith, supra, it was held: “The father of a minor son who is a pupil attending a public school or high school, and who seriously injured a fellow pupil while working in a chemical laboratory by the direction of a teacher, by throwing sulphuric acid in the face of his fellow pupil, is not liable for damages because of this tortious act, it not" appearing that the same was committed by the command or with the consent of the father, or that it was ratified by him, or that he derived any benefit therefrom.” The father in that case did not own or maintain the laboratory, and was not the proprietor of the business ox activity conducted therein. No other relation except that of parent and child appeared to have existed, which relation, without more, is insufficient to malee the father liable. That was a unanimous decision, and the court distinguished, without questioning, the decision in Griffin v. Russell, supra. What has been said above accords with the rulings in Chastain v. Johns, followed in Stanford v. Smith, supra, and with the decision in Kennedy v. Manis, supra, but would seem to be inconsistent with that in Bryant v. Keen, supra; the three last-mentioned cases being among those cited with the question propounded.

All the Justices concur, except'Atkinson and Gilbert, JJ., who dissent, and Bussell, G. J., absent for providential cause.