Jennings v. Campbell

6 N.W.2d 376, 142 Neb. 354, 1942 Neb. LEXIS 48
CourtNebraska Supreme Court
DecidedNovember 20, 1942
DocketNo. 31398
StatusPublished
Cited by7 cases

This text of 6 N.W.2d 376 (Jennings v. Campbell) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jennings v. Campbell, 6 N.W.2d 376, 142 Neb. 354, 1942 Neb. LEXIS 48 (Neb. 1942).

Opinion

Simmons, C. J.

This is an action for damages, arising from the death of plaintiff’s intestate, caused by an automobile collision between a car driven by the defendant Leonard Campbell and the deceased, Henry A. Jennings. The defendant Earl Campbell, owner of the car involved in the accident, is the father of the defendant Leonard Campbell, a minor not yet 16 years old at the time of the accident. Judgment was for the plaintiff. The father alone appeals. The negligence of the defendant Leonard Campbell is not an issue in this appeal. The appeal presents the propositions that the verdict of the jury is not supported by sufficient evidence and is contrary to law.

The evidence necessary to decide the question here presented goes to the use of the car by the son and the liability of the father for the actions of the son in driving the car.

The father’s family consisted of his wife, two sons, a daughter and the children’s grandmother. The car involved in the accident was purchased in January, 1940, and was used “for the family use.” The father drove it as did an older son Lawrence. The son Leonard was not given specific permission to use it. The keys, however, were left, one set in the ignition and one set in a car pocket when it-was not in use. The son Leonard had taken it and used it on several occasions prior to April, 1940, about which the father was advised shortly after each use. He had some of his boy friends with him on those occasions. On a Sunday in April, about a month before the accident in question, Leonard had taken the car from in front of the home without his father’s knowledge and, accompanied by other boys,, had driven it out of town. Mechanical difficulties developed, and the car was pushed home. In the meantime the father had discovered its absence, he and Lawrence went hunting for it, returning home they discovered it had been returned-[356]*356to the garage. Leonard and the other boys were hiding in the garage. The other boys were sent home, Leonard was punished and was told that he was not to drive the car “any more.” The keys at that time were taken out of the car and thereafter remained, except as herein set out, one set in the possession of the father and one set in the possession of Lawrence.

On the morning of May 23, 1940, the father told Leonard to wash the car. He told Lawrence to drive it out of the garage for that purpose. That was done. Leonard asked the father for the keys so that he could turn it around in the washing. The father gave the keys to him and went to his place of business. Leonard took the car to the schoolhouse a few blocks from the home, parked it, took the keys with him and went in to take an examination. The father, driving another car called a “pick-up” and used in his business, passed the schoolhouse about 10 a. m. and saw the car parked at the school, with a number of boys sitting in it. He asked about Leonard and was told that he was taking an examination. He told the boys to tell Leonard, when he came out of the examination, to take the car back home. This message was given to Leonard by one of the boys. Leonard said that he thought he had heard the pick-up. Others of the boys told Leonard that the father left no such message. Leonard, with several of the boys in the car, drove it through town to the swimming hole, found the water too cold to swim, decided to take a different road home, and while driving at 80 miles an hour on a country road ran into the Jennings car, causing the severe injuries to Jennings from which his death occurred several weeks later.

It is clear that the father had, prior to April, 1940, known that Leonard was using the car for extended trips and was accompanied by some of his boy friends; and the testimony of the father and Lawrence is that after the trip in April, 1940, Leonard was positively forbidden to further drive the car. The father appears to have had some doubt about the efficacy of his instructions for he removed access to the keys from Leonard.

[357]*357On the morning of the accident, however, he placed the keys in Leonard’s possession and made it possible for Leonard to drive the car if he again saw fit to disobey his father’s orders. Leonard disobeyed those instructions. The father discovered that fact when he found the car at the'schoolhouse. He did not regain possession of the keys, he allowed Leonard to keep control of the car, he did not,instruct him not to drive the car, but rather left instructions that Leonard was to drive the car “back home.” The father testified that he thought Leonard would do as he was. told. Leonard did drive the car, but in doing so went on a trip not specifically authorized, and while so doing the fatal accident occurred.

Is the father liable under the family purpose doctrine, which this court has followed and stated as follows: “Where the head of a family has purchased or maintains a car for the pleasure of his family, he is, under the so-called ‘family purpose’ doctrine, held liable for injuries inflicted in the negligent operation of the car while it is being used by members of the family for their own pleasure, on the theory that it is being used for the purpose for which it is kept, and that in operating it the member of the family is acting as the agent or servant of the owner. * * * Where the car is kept for the use and pleasure of the family, and one member of the family is using it for his individual pleasure, or for one of the family purposes for which it is kept, it comes strictly within the reason of the rule that, in such use, the member of the family is acting as the agent, in furthering the purposes of the owner, as truly as though other members of the family were in the car with him, and that the owner can be held responsible for damages resulting from the negligent operation of the car while so used.” Linch v. Dobson, 108 Neb. 632, 188 N. W. 227. See, also, Stevens v. Luther, 105 Neb. 184, 180 N. W. 87; Hogg v. MacDonald, 128 Neb. 6, 257 N. W. 274.

Defendant advances the proposition that the family purpose doctrine has no application where the car is taken surreptitiously or in violation of orders, or where the general [358]*358authority to drive has been specifically revoked. Defendant states that the evidence is undisputed on that point. Here, however, the car was not surreptitiously taken, nor taken in violation of orders. Here the defendant knew that the son had the keys, the car, the control and the propensity to drive it, and while -it may have been taken to the schoolhouse by the son in violation of orders, it was definitely driven away from the schoolhouse in compliance with defendant’s orders. The prohibition against driving had been specifically revoked by orders to drive the car from the schoolhouse to the home. With this distinction in mind it is clear that Dow v. Legg, 120 Neb. 271, 231 N. W. 747, and cases cited from other jurisdictions sustaining the rule contended for are not in point under the facts testified to in this case.

The defendant’s next contention is that the owner of a family purpose automobile is not liable where it is driven to a place other than that where the owner directs it to be taken. Here the defendant again advances the contention that the evidence is undisputed on that point. The evidence is that the son was directed by the father, through the other boys, to take the car back home. There is neither evidence that the son asked authority to take the car for a ride, nor that the father denied him that right.

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Cite This Page — Counsel Stack

Bluebook (online)
6 N.W.2d 376, 142 Neb. 354, 1942 Neb. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-campbell-neb-1942.