Smith v. Jordan

97 N.E. 761, 211 Mass. 269, 1912 Mass. LEXIS 769

• Court: Massachusetts Supreme Judicial Court
• Decided: February 29, 1912
• Status: Published

Opinion

Rugg, C. J.

The principles of law which govern this case are plain y A father is not liable for the torts of his minor son, simply because of paternity. There must exist an authority from the father to the son to do the tortious act or a subsequent ratification and adoption of it, before responsibility attaches to the parent. This authority may be express or it may arise by implication from all the attendant circumstances. The wrongful act must be performed by the son in pursuance of the business, incident or undertaking authorized by the father before the latter can be held liable. Such authority may be found in the actual presence of the parent, in express or implied direction, or in a precedent course of conduct. If the act is within the general scope of authority conferred by the father, or in carrying out the enterprise for which the minor has been commissioned, then the father may be liable even though he had no knowledge of the specific conduct in question and it was contrary to his direction. If the act is not done by the son in furtherance of the father’s business, but in performance of some independent design of his own, the father is not liable./ The controlling rules of law are the same whether the business in question concerns the operation of an automobile or any other matter.

In the case at bar, a father had bought an automobile for the general use of his family. It was registered in his name, but the only member of his family licensed to operate it was his minor son and the machine never was operated except by him. The defendant testified in substance that his wife had his permission to use the automobile whenever she desired, without mating any special request for it, and that he expected his son to mind his mother if she asked him to take her out with the car./ The plaintiff was injured by a collision with it under circumstances which warranted a finding that the son was negligent, on an afternoon when he was driving the car with his mother, at her request. These facts warranted the inference that the son was then acting in accordance with general instructions expressly or impliedly given by his father. The boy was not running it for any purpose of his own, but for the convenience of his mother and by her express direction, for whose use in common with the rest of the family it had been purchased by his father. If the father had employed a chauffeur outside the family at a stated compensation, it could not be contended seriously that taking the wife out for"an afternoon call was not the business for which he had been employed. If, instead of hiring a stranger, the father chose to have the same work performed by his minor son, to whose time and services he was entitled as a matter of law, it could not be ruled as matter of law that a jury might not find the business to be that of the father.^ This is not a case of mere permissive use of the father’s vehicle by the son for his own pleasure.^/Although the father had no knowledge of the particular journey which was taken on the occasion of the accident, his knowledge that on previous occasions the wife had used the car and his testimony of the purpose for which it was bought and that it was not customary when the wife was going on errands with the automobile to ask his permission were enough to support a finding that the trip in question was authorized by himÜ The fact that the son was the only person in the family who7 could legally operate the car had some tendency in that direction. * The relation of husband and wife is such that, when the former has purchased an automobile for family use, a ride by the wife in it with his general permission is not as matter of law the business of the wife, but may be found to be that of the husband.^ Bourne v. Whitman, 209 Mass. 155. Hunt v. Rhodes Bros. Co. 207 Mass. 30.

There was no error in refusing the defendant’s requests for instructions. There does not appear to have been evidence warranting the ruling that if the defendant had directed his son not to be out after dark and the son was driving after dark in violation of that direction, the defendant could not be held. There was evidence that the defendant had instructed the son that he should not be out after dark. But he also testified that he did not intend the car should not be brought home if he chanced not to get home earlier and that it “was a caution.” But upon a broader ground, the rulings upon this point could not have been given properly. The jury might have found that the business of the father in this connection was that the son should follow his mother’s direction. If this involved being out after dark, it was still the father’s business. There seems to have been no dispute that the son was doing as his mother had told him. So far as the substance of the other requests was not given in the charge they either were not applicable to the evidence or not sound in law.

Exceptions overruled.