BELT, J.
On March 12, 1929, Vivian McDowell, a girl 17 years of age, was killed in an automobile collision while riding as a guest of Ernest Hurner, a minor son of Alex Hurner, the defendant. Myrtle Coleman and Bonald Hurner were also riding in the one seat of defendant’s Ford roadster at the time of the accident. The collision occurred while these young people were returning to Carlton from McMinnville where they had been attending a basket ball game. The automobile was kept and used for the business, convenience, and pleasure of the Hurner family. The father, who was owner of the car, had given permission to his son to: use it for the purpose of attending the basket ball game at McMinnville, but had no knowledge as to who would accompany him. In response to the question,
“Had you ever given any authority to take four people in that car?” the defendant answered, “I had not. I warned him against it”. He knew, however, of the custom of his boy in having his schoolmates and friends to ride with him.
Defendant’s motion for a directed verdict presents the major question as to whether the “family purpose” doctrine is applicable to the facts of this case. Is the father liable to the guest of his son for the latter’s negligence while so driving a family car upon a trip for the son’s own pleasure? There is no contention that the son was an incompetent driver or that the machine was in a dangerous or defective condition. The issue is clear cut. Does the family car doctrine apply?
There is a sharp conflict in the authorities in cases where the owner of a car kept for family use is sought to be held liable for the negligence of a member of his family while using it for Ms own purposes. See cases annotated in 64 A. L. B. 851; Blashfield’s Cyc. Automobile Law, Ch. 62, §9; Berry on Automobiles (6th Ed.) §§ 1473,1474; Huddy’s Cyc. Automobile Law (9th Ed.) § 126. This court, in
Foster v. Farra,
117 Or. 286 (243 P. 778), unquestionably adopted the family purpose doctrine in its full scope, although the liability of the father in that case could well have been based on the sole charge that the automobile was in a dangerous and defective condition at the time he gave permission to Ms son to use it. In
Foster v. Farra,
supra, a pedestrian was injured; in the instant case the injury resulting in death was sustained by a guest invited to ride by a member of the family who did not own the car. Furthermore, at the time of the injury, the plaintiff’s decedent was riding with three other persons in one seat, in violation of the statute. Under such cir
eomstances can it reasonably be said that the son was the agent of the father, acting within the scope of his real or apparent authority?
It is a broad general rule that a parent is not liable for the torts of his children. An automobile is not inherently dangerous. It is dangerous only by reason of the manner of its operation. It follows that the liability of the father, if any exists, must be predicated upon the theory of agency. In order to charge the parent with responsibility, it must appear that the relation of principal and agent or master and servant existed between the parent and the child. To say that the son, in taking this trip to McMinnville for the purpose of attending a basket ball game — riding as he was in violation of the law — was engaged in furthering the business or social interests of the father, thereby creating the relation of master and servant, comes near distorting beyond recognition well established principles of agency. If the basis of liability be that the father, in keeping a family automobile, is engaged in the business of furnishing pleasure and recreation to members of his family, he would, with like reason, be responsible for the negligence of his children in the use of golf clubs, baseball bats, and bicycles purchased by him for their pleasure and convenience. Those who differ with such conclusion are obliged to do so on the ground that the automobile is a more dangerous instrumentality. Yet, courts universally hold that automobiles are not inherently dangerous. It would seem, therefore, that this new child of agency called the “family purpose” doctrine was born with the advent of the automobile. It is quite apparent that, on the grounds of public policy and “natural justice,” some courts have extended the doctrine beyond fundamental principles of agency. In Minnesota, the courts have
consistently adhered to the doctrine
(Kayser v. Van Nest,
125 Minn. 277 (146 N. W. 1091, 51 L. R. A. (N. S.) 970), and
Johnson v. Evans,
141 Minn. 356 (170 N. W. 220, 2 A. L. R. 891)) until they were called upon to apply it to the case of a motorboat purchased by the head of the family for the pleasure of the members of his family:
Felcyn v. Gamble
(Minn.) 241 N. W. 37. The reason assigned for 'the refusal of the court to apply the doctrine to motorboats, reduced to its ultimate analysis, is that there are more automobiles than motorboats and that the latter are less dangerous. The court said:
“It is evident that in practically all of the decisions the doctrine was applied to automobiles in the interest of justice and as a necessity. The situation as regards motorboats is in no way comparable to that of automobiles”.
Thus is exemplified the embarrassment which courts sometimes suffer when they depart from fundamental rules to meet the exigencies of a particular case. True, it may be that, as a matter of public policy, a father who turns a reckless son loose with a high-powered machine assumes the risk and should be held responsible for the acts of the latter, regardless of whether or not they promote the father’s interests, but such question is clearly a matter for the legislature rather than the courts. As said in 29 W. Ya. Law Quarterly 53: “Indications are not wanting that the courts asserting this doctrine are not entirely satisfied with it and would justify their course on the broad ground of public policy. If the automobile is not a dangerous instrumentality, — if the parental relationship alone is not sufficient to throw the loss on the owner, and if the family purpose doctrine results in an unwarranted warping of the doctrine of respondeat superior, then
no other ground than policy would seem to be available to courts that wish to impose such a liability. But if the whole question is one of conflicting considerations of policy alone, as it appears to be, then its solution is properly within the province of the legislatures, and not of the courts, and should not be arrived at by distorting the principles of agency and torts to fit the case”. Also see, to the same effect, 28 Harvard Law Review 91; 19 Michigan Law Review 543; 25 Michigan Law Review 187; 2 Temple Law Quarterly 232.
Assuming, on the authority of
Foster v. Farra,
supra, that, in the instant case, the son was the agent of the defendant owner in the operation of the car, it does not follow that he was acting within the scope of his authority in the transportation of his guest in violation of law. The trial court submitted to the jury, as a question of. fact, the issue as to whether the son had the apparent authority to invite this girl to ride in the automobile, but, as we view the record, there was no evidence upon which to base such an instruction.
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BELT, J.
On March 12, 1929, Vivian McDowell, a girl 17 years of age, was killed in an automobile collision while riding as a guest of Ernest Hurner, a minor son of Alex Hurner, the defendant. Myrtle Coleman and Bonald Hurner were also riding in the one seat of defendant’s Ford roadster at the time of the accident. The collision occurred while these young people were returning to Carlton from McMinnville where they had been attending a basket ball game. The automobile was kept and used for the business, convenience, and pleasure of the Hurner family. The father, who was owner of the car, had given permission to his son to: use it for the purpose of attending the basket ball game at McMinnville, but had no knowledge as to who would accompany him. In response to the question,
“Had you ever given any authority to take four people in that car?” the defendant answered, “I had not. I warned him against it”. He knew, however, of the custom of his boy in having his schoolmates and friends to ride with him.
Defendant’s motion for a directed verdict presents the major question as to whether the “family purpose” doctrine is applicable to the facts of this case. Is the father liable to the guest of his son for the latter’s negligence while so driving a family car upon a trip for the son’s own pleasure? There is no contention that the son was an incompetent driver or that the machine was in a dangerous or defective condition. The issue is clear cut. Does the family car doctrine apply?
There is a sharp conflict in the authorities in cases where the owner of a car kept for family use is sought to be held liable for the negligence of a member of his family while using it for Ms own purposes. See cases annotated in 64 A. L. B. 851; Blashfield’s Cyc. Automobile Law, Ch. 62, §9; Berry on Automobiles (6th Ed.) §§ 1473,1474; Huddy’s Cyc. Automobile Law (9th Ed.) § 126. This court, in
Foster v. Farra,
117 Or. 286 (243 P. 778), unquestionably adopted the family purpose doctrine in its full scope, although the liability of the father in that case could well have been based on the sole charge that the automobile was in a dangerous and defective condition at the time he gave permission to Ms son to use it. In
Foster v. Farra,
supra, a pedestrian was injured; in the instant case the injury resulting in death was sustained by a guest invited to ride by a member of the family who did not own the car. Furthermore, at the time of the injury, the plaintiff’s decedent was riding with three other persons in one seat, in violation of the statute. Under such cir
eomstances can it reasonably be said that the son was the agent of the father, acting within the scope of his real or apparent authority?
It is a broad general rule that a parent is not liable for the torts of his children. An automobile is not inherently dangerous. It is dangerous only by reason of the manner of its operation. It follows that the liability of the father, if any exists, must be predicated upon the theory of agency. In order to charge the parent with responsibility, it must appear that the relation of principal and agent or master and servant existed between the parent and the child. To say that the son, in taking this trip to McMinnville for the purpose of attending a basket ball game — riding as he was in violation of the law — was engaged in furthering the business or social interests of the father, thereby creating the relation of master and servant, comes near distorting beyond recognition well established principles of agency. If the basis of liability be that the father, in keeping a family automobile, is engaged in the business of furnishing pleasure and recreation to members of his family, he would, with like reason, be responsible for the negligence of his children in the use of golf clubs, baseball bats, and bicycles purchased by him for their pleasure and convenience. Those who differ with such conclusion are obliged to do so on the ground that the automobile is a more dangerous instrumentality. Yet, courts universally hold that automobiles are not inherently dangerous. It would seem, therefore, that this new child of agency called the “family purpose” doctrine was born with the advent of the automobile. It is quite apparent that, on the grounds of public policy and “natural justice,” some courts have extended the doctrine beyond fundamental principles of agency. In Minnesota, the courts have
consistently adhered to the doctrine
(Kayser v. Van Nest,
125 Minn. 277 (146 N. W. 1091, 51 L. R. A. (N. S.) 970), and
Johnson v. Evans,
141 Minn. 356 (170 N. W. 220, 2 A. L. R. 891)) until they were called upon to apply it to the case of a motorboat purchased by the head of the family for the pleasure of the members of his family:
Felcyn v. Gamble
(Minn.) 241 N. W. 37. The reason assigned for 'the refusal of the court to apply the doctrine to motorboats, reduced to its ultimate analysis, is that there are more automobiles than motorboats and that the latter are less dangerous. The court said:
“It is evident that in practically all of the decisions the doctrine was applied to automobiles in the interest of justice and as a necessity. The situation as regards motorboats is in no way comparable to that of automobiles”.
Thus is exemplified the embarrassment which courts sometimes suffer when they depart from fundamental rules to meet the exigencies of a particular case. True, it may be that, as a matter of public policy, a father who turns a reckless son loose with a high-powered machine assumes the risk and should be held responsible for the acts of the latter, regardless of whether or not they promote the father’s interests, but such question is clearly a matter for the legislature rather than the courts. As said in 29 W. Ya. Law Quarterly 53: “Indications are not wanting that the courts asserting this doctrine are not entirely satisfied with it and would justify their course on the broad ground of public policy. If the automobile is not a dangerous instrumentality, — if the parental relationship alone is not sufficient to throw the loss on the owner, and if the family purpose doctrine results in an unwarranted warping of the doctrine of respondeat superior, then
no other ground than policy would seem to be available to courts that wish to impose such a liability. But if the whole question is one of conflicting considerations of policy alone, as it appears to be, then its solution is properly within the province of the legislatures, and not of the courts, and should not be arrived at by distorting the principles of agency and torts to fit the case”. Also see, to the same effect, 28 Harvard Law Review 91; 19 Michigan Law Review 543; 25 Michigan Law Review 187; 2 Temple Law Quarterly 232.
Assuming, on the authority of
Foster v. Farra,
supra, that, in the instant case, the son was the agent of the defendant owner in the operation of the car, it does not follow that he was acting within the scope of his authority in the transportation of his guest in violation of law. The trial court submitted to the jury, as a question of. fact, the issue as to whether the son had the apparent authority to invite this girl to ride in the automobile, but, as we view the record, there was no evidence upon which to base such an instruction. We are unable to conclude that the son had apparent authority to invite any person to violate the statute. It is suggested that this is a matter which could be taken into consideration only with relation to the question of the alleged contributory negligence of the decedent. We do not agree with this contention, as we deem it was also an important factor in determining the scope of the son’s authority in using the car. After careful consideration of the authorities, we think the court would not be warranted in extending the family purpose doctrine to the facts in this case. We have found no case which, when the facts are carefully analyzed, goes to such an extreme viewpoint.
Robert F. Maguire,
of Portland (Leland B. Shaw, of Portland, on the brief) for appellant.
Earl A. Nott
and
W. M. Ramsey,
both of McMinnville, for respondent.
We are not nnmindfnl that a prima facie case of liability was made upon proof of ownership:
West v. Kern,
88 Or. 247 (171 P. 413, L. R. A. 1918D, 920), and numerous other cases in this jurisdiction which could be cited. But, when it appeared from the uncontradicted testimony that, in fact, the son was not acting within either the real or the apparent scope of his agency in thus transporting the decedent, the presumption of agency was overcome as a matter of law and it was the duty of the court to have so declared by directing a verdict in favor of the defendant:
Judson v. Bee Hive Auto Service Co.
(on rehearing), 136 Or. 5 (297 P. 1050, 74 A. L. R. 944).
Bean, C: J., Brown and Campbell, JJ., concur.