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Turner v. Halls Adm'x

October 24, 1952

TURNER
v.
HALLS ADM'X



Moremen

MOREMEN, Justice. This is an appeal from a judgment in the sum of $20,000 rendered in favor of the appellee for damages to the estate of Rachel Hall, deceased. The appellee, Mrs. Jewell Hines, is the mother of Rachel Hall and was appointed the administratrix of her estate.

The appellant, Bunie Turner, is a farmer residing with his wife and 16 year old son, Arnold Turner, on a farm in Warren County, Kentucky. Arnold is a student in the sophomore year in the Warren County High School. On October 13, 1951, he drove the family automobile, a 1950 Plymouth Sedan, to school. When school was dismissed at 11:30 a.m. he invited five of his schoolmates to ride with him into the nearby city of Bowling Green. These students went to Bowling Green to sell tickets on a ham which was to be raffled for the benefit of the senior class of the Warrent County High School. In Bowling Green, Arnold met his father who purchased a jacket for him. Arnold then rejoined his schoolmates. When all the tickets on the ham were sold, they went back to school in order to obtain more tickets. Being unable to obtain tickets at the school, they proceeded to go to the home of Katherine Hendricks, another student who lived on Russellville Road, in order to obtain tickets from her. Joe Anderson, Arnold's schoolmate, drove the car out Russellville Road for the purpose of obtaining these tickets. Joe Anderson, Arnold Turner, and another boy were in the front seat. Three girls, including the deceased, were in the rear seat.

As Anderson was driving along Russellville Road he attempted to pass two vehicles, a passenger car and a truck. As he was trying to pass the the truck, the truck began to turn left into a driveway causing the Plymouth to collide with the truck. The Plymouth turned over, resulting in the death of Rachel Hall.

The appellant, Bunie Turner, was the owner and driver of the truck and also the owner of the passenger car which collided with it. The appellee alleges the appellant is liable for damages for the death of Rachel Hall because of (1) liability based on appellant's negligence and (2) liability based on the 'Family Purpose Doctrine' due to the fact that it was appellant's car, which was under the control of his son, that collided with his truck.

The appellant contends that the circuit court erred in its instructions to the jury on the liability of appellant under the Family Purpose Doctrine. This instruction reads:

'The Court also tells the jury that if they believe from the evidence the automobile colliding with the truck was maintained by the defendant, Bunie Turner, for the use, pleasure and convenience of his family and that his son, Arnold Turner, was permitted by him to drive such automobile back and forth and to and from school unaccompanied by the defendant or other members of his family, and that on the day of the collision referred to in the testimony, such son was given the sole possession and control of the said automobile for that purpose, then his said son was on the occasion of the collision between the automobile and the truck, the agent of his father, the defendant herein, and if his said son permitted a companion, Joe Anderson, to drive the said automobile on the occasion referred to in the testimony and was present in such car at the time and consenting that said Anderson should do so, then in law the said Anderson in driving the said automobile was likewise the agent of the defendant, Bunie Turner, at the time of the collision between the two cars.'

Appellant insists the court should also have instructed the jury that if appellant's son used the automobile for an unauthorized purpose or allowed another to drive the car without authority or permitted others to be guests in the car against appellant's specific instructions, then the son acted outside the scope of his authority and appellant was thereby released from liability under the Family Purpose Doctrine.

We have said in a number of cases that the Family Purpose Doctrine is based upon the relationship of principal and agent or master and servant, and is applied in cases where one maintains an automobile for the pleasure and use of other members of his family. U. S. Fidelity & Guaranty Co. v. Brann, 297 Ky. 381, 180 S.W.2d 102; Myers' Adm'x v. Brown, 250 Ky. 64, 61 S.W.2d 1052.

This doctrine is not a new one that has arisen since use of the automobile became general. In Lashbrook v. Patten, 1864, 62 Ky. 317 this court held a father responsible for his minor son's negligent act 'whilst driving his two sisters to a 'picnic,' in his father's carriage, drawn by his father's horses, with his father's approbation,' saying, 'The son must be regarded as in the father's employment, discharging a duty usually performed by a slave and therefore must, for the purposes of this suit, be regarded as his father's servant.'

In many cases since that date we have applied this rule of parental responsibility where a child was using the car for one of the purposes for which it had been obtained, and, while the liability of the parent arises out of the fiction of master and servant, still the principles generally applicable to a commercial relationship of master and servant are not always appropriate to a consideration involving the family relationship.

The act of a parent who has purchased and who keeps an automobile for family use does not involve the same principle of law as does the act of an owner in lending his machine to his servant when that servant is not engaged in the performance of the master's business. Where the automobile is purely a business vehicle we apply strict rules concerning deviation by the servant from the path of his employment, but in cases where the vehicle is maintained for the use of the family, the first determination that must be made is whether or not at the time of the accident the car was being devoted to that use.

An examination of the facts presented by the testimony discloses that appellant's family consists of himself, his wife, and his child Arnold, age 16. Arnold had been driving his father's automobile since the time he enrolled at the Warren County High School. He used it to attend athletic contests and other extra curricular activities of the school. On several occasions before the accident other students had accompanied Arnold on pleasure trips.

We are therefore presented with the question as to whether or not appellant, after giving permission to his son to use the car for the purposes for which it had been purchased, could limit the extent of his liability by specific instructions to his son concerning the manner and extent of its operation while the son was in fact using the car.

The Family Purpose Doctrine is a humanitarian one designed for the protection of the public generally, and resulted from recognition of the fact that in the vast majority of instances an infant has not sufficient property in his own ...


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