Crittenden v. Murphy (California Appellate Decisions, Volume 26: Civil No. 2327. First Appellate District.)

April 16, 1918

Civil No. 2327. First Appellate District. April 16, 1918.

FANNY CRITTENDEN et vir., Plaintiffs and Appellants, v. JOSEPH A. MURPHY and KATE J. MURPHY, Defendants and Respondents.

[1] Parent and Child — Liability for Torts of Minor. — The mere fact of parentage alone does not render the parents liable for the torts of the minor child, unauthorized and unratified by the parents, and the liability, if any, must rest upon the showing of agency and the doctrine of respondeat superior.

[2] Id. — Owner of Automobile — Duty to Public. — The owner of an automobile owes the duty to the traveling public to see that his car, when driven on the streets with his permission and for the purposes for which the car was purchased, should be driven carefully, and such owner should not in good conscience be allowed disclaim his responsibility on the ground that the use, thus contemplated and authorized by him, is permissive only.

[3] Id. — Permissive Use of Automobile by Minor. — Reckless Driving — Injury to Pedestrian — Negligence of Parents. — Where a minor with his parents' permission takes out their automobile and drives it so recklessly as to cause it to run off the highway and injure a person standing on the sidewalk, it is in effect the negligence of the parents in permitting the reckless son to drive that is the real cause of the injury.

[4] Id. — Pleading — Sufficiency of Complaint. — In an action for damages for such injuries, where the complaint alleges the negligent driving of the automobile by the son, the accident, the injury to the plaintiff, the ownership of the automobile by the parents, the purpose for which the automobile was purchased and the use of the automobile by the son in furtherance of that purpose at the time of the accident with the knowledge and permission of the parents, it states a good cause of action against the parents.

Appeal from the Superior Court of the City and County of San Francisco—John Hunt, Judge.

For Appellants—Julian H. Biddle.
For Respondents—Wm. A. Kelly.

Amici Curiae supporting Respondents' position — Jesse H. Steinhart, Lawrence L. Levy.

Plaintiffs appeal from a judgment for defendants after demurrer sustained to their amended complaint. The action is one for damages for personal injuries suffered by Mrs. Crittenden as a result of her being struck by an automobile driven by Thomas C. Murphy, the minor son of defendants. The negligent driving of the automobile by the son, the happening of the accident and the consequent injury to plaintiff are properly alleged in the complaint, and the sole question on this appeal is the sufficiency of the complaint to charge the parents with liability for the son's tort. These allegations are in substance as follows: That defendants are owners of the automobile in question; that the same was purchased for the pleasure, comfort and enjoyment of defendants and their said minor son and not for business purposes; that the son was at all times authorized and permitted by defendants to drive the automobile himself and for defendants, and that at and immediately prior to the time of the accident, the son was driving the automobile with the consent, knowledge, and permission of defendants, and was "acting in furtherance of, and not apart from, the service and control of these defendants, and within the purposes for which said automobile was purchased."

The question whether or not under the facts above set forth, the parents are to be held liable for the negligence of their minor son has never been decided in California, although there have been a number of decisions upon the subject in other jurisdictions. (See note to Griffin v. Russell, L. R. A. 1916 F, 223.) [1] It is conceded in all of the cases that, under our system of jurisprudence, the mere fact of parentage alone does not render a parent liable for the torts of his minor child, unauthorized and unratified by the parent, and that the liability, if any, must rest upon a showing of agency and the doctrine of respondeat superior. In those cases in which it appeared that, at the time of the accident, the son was engaged in carrying the parents or other members of the family in the machine, the courts are practically unanimous in holding that the son was agent of the parent; but, where the son was alone in the machine, and not engaged in performing some act expressly for the parent, the courts have divided on the question. The reasoning of ythose cases which hold the parent liable is well expressed by the following quotation from the case of Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (n. s.) 59: "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 purposes 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 and kept it. No other element is essential to invoke the rule of respondeat superior. . . . It seems too plain for cavil that a father who furnishes a vehicle for the customary conveyance of 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 the member of his family or another, is his agent. The fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one as well as by all."

"Any other view would set a premium upon the failure of the owner to employ a competent chauffeur to drive an automobile kept for the use of members of his family, even if he knew they were grossly incompetent to operate it for themselves."

We are satisfied that the rule thus laid down is the correct one, not only because of the fact that the use of the machine by the son for his own pleasure was contemplated when purchased, but also because of the very nature of the automobile itself. While it is true that the automobile is not in itself a dangerous instrument, nevertheless it demands a very high degree of care and skill in its management upon the highway; and it must be recognized that, in the hands of an incompetent or reckless youth, it has immense potentiality for harm to others. [2] Therefore the owner owes the duty to the traveling public to see to it that his car, when driven on the streets with his permission and for the purposes for which the car was purchased, should be driven carefully and with due consideration to their rights; and the owner should not in good conscience be allowed to disclaim his responsibility on the ground that the use, thus contemplated and authorized by him, is permissive only. [3] When, as is alleged in the complaint in the case at bar, the son with his parents' permission takes the car out and drives it so recklessly as to cause it to run off the highway and to strike plaintiff standing on the sidewalk, it is in effect the negligence of the parents in permitting the reckless son to drive that is the real cause of the injury. And we find this principle recognized in the statutes of California, for section 19 of the Motor Vehicle Act of 1915, which was in effect at the time of the accident, provides as follows: "No person shall allow a motor vehicle owned by him or under his control to be operated by any person who has no legal right to do so, or in violation of the terms of this act." The complaint in the case at bar certainly shows an utter disregard by defendant's son of the rules of the road laid down in the act in question. And in 1917, the legislature went a step further, in an amendment to section 24 of the Motor Vehicle Act, where it is provided that no minor shall in any event operate any automobile without a license, and that as a prerequisite to obtaining such license, the parent or guardian of such minor must join in the application therefor; and it is there further provided "that any negligence of a minor, so licensed, in operating or driving a motor vehicle, upon the public highway, whether as chauffeur or operator, shall be imputed to the person or persons who shall have signed the application of such minor for said license, which person or persons shall be jointly and severally liable with such minor, and to that extent it creates a new liability, but, for the noted that the provision just quoted makes the parent liable even though he neither owns nor controls the machine driven by the minor, and to that extent it creates a new liability; [4] but, for the reasons above set forth, we are satisfied that under the law as it stood at the time of the accident in the case at bar, the complaint herein stated a good cause of action against the defendants.

It is therefore ordered that the judgment be reversed, with directions to the lower court to overrule the demurrer to the complaint.

ZOOK, J. pro tem.

We concur:
KERRIGAN, J.
BEASLY, J. pro tem.