Trice v. Bridgewater , 51 S.W.2d 797 ( 1932 )

For the reasons stated in the majority opinion, I concur in the holding that the judgment of the trial court cannot be affirmed. However, I am of the opinion that the judgment should be reversed and rendered in favor of C. L. Trice.

On the occasion in question, Wilson Trice, the minor son of C. L. Trice, used his father's automobile to take two young ladies and a young man, friends of his, for a ride. After being joined by his friends, he allowed one of them to drive the car, and while it was being so driven the collision occurred. C. L. Trice's supposed liability is based solely on the fact that the automobile with which the injury was inflicted was owned and maintained by him for the comfort, convenience, and use of his son and other members of the family, and was actually being so used by the son at the time of the injury. It depends for its support on the so-called "family car doctrine." There is no contention that Wilson Trice was an incompetent driver, and it is further undisputed that no other member of the Trice family was in the automobile, and Wilson Trice was not on any mission for the father, unless it be that he was acting for his father in taking himself and friends for a ride. I cannot agree to the adoption of the family car doctrine in Texas as applied to the facts of this case.

The family car doctrine has from time to time had various theories for its foundation, among them being: (a) Family relationship; (b) ownership of the automobile; (c) dangerous instrumentality; and (d) principal and agent or master and servant. It originally sprang from the idea that an automobile was a dangerous instrument, and as a consequence, if the parent allowed his minor child to use it, he should be held responsible for injuries inflicted therewith. Some of our Texas decisions have placed liability on this ground. Mann v. Cook (Tex.Civ.App.) 11 S.W.2d 572, 577. When the automobile was new and strange, there was a tendency to look upon it as a dangerous thing, and it was considered proper to hold the parent responsible for its use by a minor child to the same extent as other dangerous instruments placed in the hands of the minor by its parents. After the automobile came into more general use, the idea of dangerous instrumentality was abandoned. Lewis v. Amorous, 3 Ga. App. 50,59 S.E. 338, 340; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A. (N. S.) 382, 19 Ann.Cas. 1227; Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L.R.A. (N. S.) 216, 125 Am. St. Rep. 915; McNeal v. McKain, 33 Okla. 449,126 P. 742, 41 L.R.A. (N. S.) 775, and cases there cited. However, notwithstanding this idea has been abandoned, the proposition of law established under such mistaken belief still remains.

C. L. Trice's liability cannot be based on family relationship, for it is well settled that a father is not liable for the torts of his minor child solely upon the ground of that relationship. Miller v. Pettigrew (Tex.Civ.App.) 10 S.W.2d 168; Lessoff v. Gordon, 58 Tex. Civ. App. 213,124 S.W. 182; Klapproth v. Smith (Tex.Civ.App.) 144 S.W. 688; Ritter v. Thibodeaus (Tex.Civ.App.) 41 S.W. 492; Way v. Guest (Tex.Civ.App.)272 S.W. 217; Brown v. City Service Co. (Tex.Com.App.) 245 S.W. 656; Van Cleave v. Walker (Tex.Civ.App.) 210 S.W. 767; Allen v. Bland, (Tex.Civ.App.) 168 S.W. 35; Ball v. Youngblood (Tex.Civ.App.) 252 S.W. 872.

It is likewise well settled that mere ownership of the automobile with which the injury is inflicted by another is not sufficient to impose liability on the owner. 42 C.J. 1075: 2 R.C.L. 1200; Puryear v. Martin (Tex.Civ.App.) 13 S.W.2d 203, par. 2; Genusa v. City of Houston (Tex.Civ.App.) 10 S.W.2d 772; Cole v. Wright (Tex.Civ.App.) 18 S.W.2d 242.

Therefore, if liability is to be imposed on the parent, it must be under the doctrine of principal and agent or master and servant. In order for this doctrine to apply, the relationship must arise either by expressed or implied authority. The supposed servant must be transacting the business of the master or acting either under the expressed or implied direction of the master. The mere relationship of child and parent is not sufficient to make the one the agent or servant of the other. Cook v. Mann (Tex.Com.App.) 40 S.W.2d 72, 74. When Wilson Trice took his young lady friend for a ride, he was not transacting any business for his father. He engaged in the enterprise for his sole pleasure. Neither was he performing any service under the direction, control, or management of the father either expressed or implied. Under no stretch of the imagination can it be said that he was the agent or the servant of his father. G., H. S. A. Ry. Co. v. Currie, 100 Tex. 136,96 S.W. 1073, 1075, 10 L.R.A. (N. S.) 367.

The mere fact that it was the duty of the father to provide for the comfort and pleasure of the son, and that in doing so he provided the son with an automobile, is not sufficient in itself to make the father liable for the son's torts committed with the automobile. Otherwise the father would be liable for the torts committed by the son with a baseball bat, walking cane, bicycle, saddle horse, or other instrument furnished to him by the parent for his amusement. The father is under no legal obligation to take his son for an automobile ride, and if he declines to do so and the son elects to take himself for a ride, in so doing, he is acting for himself and not for his parent. Under the great weight of authority the family car doctrine, as applied to the facts as reflected by this record, has been rejected. 64 A.L.R. 851, note; Watkins v. Clark,103 Kan. 629, 176 P. 131; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A. 1918C, 715, Ann.Cas. 1918E, 1127; Clawson v. Schroeder, 63 Mont. 488,208 P. 924; Doran v. Thomsen, 76 N.J. Law, 754, 71 A. 296, 19 L.R.A. (N. S.) 335, 131 Am. St. Rep. 677; Van Blaricom v. Dodgson, 220 N.Y. 111,115 N.E. 443, L.R.A. 1917F, 363; Elms v. Flick, 100 Ohio St. 186,126 N.E. 66; Stumpf v. Montgomery, 101 Okla. 257, 226 P. 65, 32 A.L.R. 1490; Markle v. Perot, 273 Pa. 4, 116 A. 542; Crossett v. Goelzer,177 Wis. 455, 188 N.W. 627; Papke v. Haerle, 189 Wis. 156, 207 N.W. 261; Norton v. Hall, 149 Ark. 428, 232 S.W. 934, 19 A.L.R. 384; Grillich v. Weinshenk, 64 Cal. App. 474, 222 P. 160; Cannon v. Bastian, 1 W. W. Harr. (Del.) 533, 116 A. 209; Pratt v. Cloutier, 119 Me. 203,110 A. 353, 10 A.L.R. 1434; Baitary v. Smith, 140 Md. 437, 116 A. 651; McGowan v. Longwood, 242 Mass. 337, 136 N.E. 72, 23 A.L.R. 617.