On original hearing, Bean, Brown, Campbell and Belt, JJ., sitting, this court agreed without dissent that the "family car doctrine" should not be extended to the facts in this case. The writer, therefore, is fully in accord with the statement in the majority opinion that, "It is desirable that there be uniformity and stability in our decisions; that we do not declare the law to be one thing today and something else tomorrow; and that we do not deny today relief which we yesterday granted". Yea, verily, that is a wise and wholesome doctrine. It is an equally wise policy for every court to adhere to that which is sound and to reject that which is false. Otherwise, there is no progress in the law.
In my opinion, the so-called family-purpose doctrine, particularly as applied to the facts involved herein, is unsound and illogical. The majority opinion holds the father liable for the tort of his son on the theory of agency. According to the general rule of the common law a parent is not liable for the tort of a minor child. Certainly the mere relationship existing between father and son can not afford a basis for liability. This court recognized this universal rule when it refused to attach liability to a father who had placed a 32 special rifle in the hands of his minor son, resulting in injury to a third person:Herndobler v. Rippen, 75 Or. 22 (146 P. 140). This case was not tried *Page 632 on the theory that the automobile is inherently a dangerous instrumentality. We are concerned, therefore, with the precise question as to whether or not, at the time the son was driving the automobile, he was acting within the scope of his agency.
At the time of the accident, Ernest Hurner, a minor son of the defendant, was driving home to Carlton, after having attended a basket ball game at McMinnville. Accompanying him were three companions who were riding in this one-seated Ford roadster. 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.
In the light of these facts, the writer is unable to conclude that a boy on a "joy ride" transporting his companions in violation of the law and against the warning of his father is acting for and on behalf of the latter. To so hold is, in my opinion, a plain distortion of the facts and of the law of agency.
This boy, no doubt, thought he was going on an independent journey of his own, but, no, he was mistaken, for, as suggested in Watkins v. Clark, 103 Kan. 629 (176 P. 131), it was "father's little outing by proxy". Some courts have stretched the law of agency to the breaking point in order to fasten liability on a paying defendant, but in all the volumes which have been written on this vexed question the writer has *Page 633 failed to find a case where there has been such a departure from fundamental principles. As a matter of fact, the real basis for liability is not agency. It is public policy and that, I submit, is a matter for the legislature and not for the courts to determine.
In the following jurisdictions, the family purpose doctrine has been rejected:
*Page 634Alabama: Parker v. Wilson, 179 Ala. 361 (60 So. 150, 43 L.R.A. (N.S.) 87);
Arkansas: Norton v. Hall, 149 Ark. 428 (232 S.W. 934, 19 A.L.R. 384);
California: Spence v. Fisher, 184 Cal. 209 (193 P. 255, 14 A.L.R. 1083);
Delaware: Smith v. Callahan (Del.), 144 A. 46 (64 A.L.R. 830);
Illinois: Anderson v. Byrnes, 344 Ill. 240 (176 N.E. 374); White v. Seitz, 342 Ill. 266 (174 N.E. 371); Miller v. McHale, 263 Ill. App. 471;
Indiana: Smith v. Weaver, 73 Ind. App. 350 (124 N.E. 503);
Kansas: Watkins v. Clark, 103 Kan. 629 (176 P. 131); Thompson v. Rys. Co., 113 Kan. 74 (213 P. 633);
Louisiana: Davis v. Shaw (La.App. 1932), 142 So. 301;
Maine: Pratt v. Cloutier, 119 Me. 203 (110 A. 353, 10 A.L.R. 1434);
Maryland: Myers v. Shipley, 140 Md. 380 (116 A. 645, 20 A.L.R. 1460);
Massachusetts: McGowan v. Longwood, 242 Mass. 337 (136 N.E. 72, 23 A.L.R. 617);
Michigan: Loehr v. Abell, 174 Mich. 590 (140 N.W. 926);
Mississippi: Smith v. Dauber, 155 Miss. 694 (125 So. 102);
Missouri: Hays v. Hogan, 273 Mo. 1 (200 S.W. 286, L.R.A. 1918C, 715, Ann. Cas. 1918E, 1127);
Montana: Clawson v. Schroeder, 63 Mont. 488 (208 P. 924);
New Hampshire: LaFond v. Richardson, 84 N.H. 288 (149 A. 600);
New Jersey: Doran v. Thomsen, 76 N.J. Law 754 (19 L.R.A. (N.S.) 335, 131 Am. St. Rep. 677, 71 A. 296);
New York: Van Blaricom v. Dodgson, 220 N.Y. 111 (115 N.E. 433, L.R.A. 1917F, 363);
Ohio: Elms v. Flick, 100 Ohio St. 186 (126 N.E. 66);
Oklahoma: Stumpf v. Montgomery, 101 Okla. 257 (226 P. 65, 32 A.L.R. 1490);
Pennsylvania: Piquet v. Wazelle, 288 Pa. 463 (136 A. 787);
Rhode Island: Landry v. Richmond, 45 R.I. 504, (124 A. 263, 32 A.L.R. 1500);
South Dakota: Behseleck v. Andrus (S.D. 1932), 244 N.W. 268;
Virginia: Blair v. Broadwater, 121 Va. 301 (93 S.E. 632, L.R.A. 1918A, 1011);
Utah: McFarlane v. Winters, 47 Utah 598 (155 P. 437, L.R.A. 1916D, 618);
Vermont: Jones v. Knapp, 104 Vt. 5 (156 A. 399).
Wisconsin: Crossett v. Goelzer, 177 Wis. 455 (188 N.W. 627).
It will be observed from the above list that five states, namely, California, Illinois, Missouri, Montana and Oklahoma, which once adhered to the doctrine, now reject it. In overruling former decisions, the Supreme Court in Missouri, in Hays v.Hogan, supra, said:
"But the doctrine, we think, has no firm foundation in reason or common sense. In theory it overrules well-settled principles of law; in practice it would interdict the father's generosity and his reasonable care for the pleasure, or even the well-being, of his children by imposing a universal responsibility for their acts".
Also see the following legal periodicals wherein the doctrine is criticized as being a departure from well-established principles of agency: 1 New York Law *Page 635 Review 283; 11 Boston Law Review 542; 26 Mich. Law Review 846; 46 Harvard Law Review 149; 15 Virginia Law Review 184; 34 West Virginia Law Quarterly 53; 1 Cincinnati Law Review 193; 11 St. Louis Law Review 131.
Those courts which have adhered to the doctrine are constantly confronted with a situation which compels them to resort to various kinds of fantastic reasoning in order to avoid an absurd result. Witness the case of Felcyn v. Gamble, 185 Minn. 357 (241 N.W. 37, 79 A.L.R. 1159), wherein the court refused to hold the family purpose doctrine applicable where a father had furnished a motor boat for the pleasure of his family and an injury had occurred to a guest riding in the boat while being used by the owner's son for his own pleasure. The court valiantly endeavored to make a distinction on the ground that there were at least a million automobiles traversing the highways of that state whereas there were only a limited number of motor boats. 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".
What would this court do in a case wherein the wife had purchased an automobile for the use of the family and the husband had driven it for some purpose of his own? Would it be held that, in so doing, the husband was acting as agent of the wife?
As stated in 29 W. Va. 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 *Page 636 — 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 Mich. Law Review 543; 25 Michigan Law Review 187; 2 Temple Law Quarterly 232.
In answer to the contention that the purpose for which the car is bought is the controlling factor in determining the liability of the owner, the Supreme Court of New Jersey, in the leading case of Doran v. Thomsen, supra, said:
"This makes the defendant's liability to depend upon the object for which he purchased the machine, which was for the pleasure of the family, in connection with the fact that his daughter operated it for that purpose, the jury being instructed that thereby she became his servant. This is contrary to the doctrine of Evers v. Krouse (1904), [70 N.J.L. 653, 66 L.R.A. 592, 58 A. 181, 16 Am. Neg. Rep. 515] supra. It would subject a parent to liability if he bought for his son a baseball or for his daughter a golf club, and by permitting them to be used by his children for their appropriate purposes, injury occurred. It bases the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child. This proposition ignores an essential element in the creation of that status as to third persons, that such use must be in the furtherance of, and not apart from, the master's *Page 637 service and control, and fails to distinguish between a mere permission to use and a use subject to the control of the master and connected with his affairs".
In rejecting the doctrine, the Supreme Court of New York, inVan Blaricom v. Dodgson, supra, said:
"This is an advanced proposition in the law of principal and agent, and the question which it presents really resolves itself into the one whether, as a matter of common sense and practical experience, we ought to say that a parent who maintains some article for family use, and occasionally permits a capable son to use it for his individual convenience, ought to be regarded as having undertaken the occupation of entertaining the latter, and to have made him his agent in this business, although the act being done is solely for the benefit of the son. That really is about all there is to the question".
I have no desire to further review the numerous decisions relative to the family-purpose doctrine and thereby contribute to the confusion and the glorious uncertainties of the law. After careful consideration, I am convinced that the weight of authority and the better reasoned cases are against the doctrine. This court, in keeping with the decided trend of modern authority, should reject it.
A discussion of the family-purpose doctrine in Foster v.Farra, 117 Or. 286 (243 P. 778), was unnecessary to a decision in that case. The liability of the defendant could well have been predicated upon his negligence in placing in the hands of his son an automobile known to be in a dangerous and defective condition. As stated by the court:
"In permitting his son, Herman Farra, to use the automobile in the condition it was in at the time of the accident, the defendant Walter H. Farra, violated both the letter and the spirit of the statute and was *Page 638 guilty of negligence. An automobile, which is knowingly unmanageable, is such a dangerous instrumentality that it is negligence to allow its use on the highway". Citing numerous authorities in support thereof.
Furthermore, in the Foster case, the party injured was a pedestrian on the sidewalk in a place where she undoubtedly had a right to be at the time she was struck by the automobile. Whereas, in the instant case, the young girl who met her untimely death was at a place where she had no right to be under the plain, mandatory provisions of the statute relative to the number of persons who are permitted to ride in the front seat of an automobile. Clearly, the son had no real or apparent authority thus to violate the law.
Even though the court should decide to adhere to the family-purpose doctrine as announced in the Foster case, in my opinion there is no justification for applying the doctrine to the facts in this case. I, therefore, dissent from the affirmance of the judgment and am of the opinion that this court should adhere to the conclusion reached on original hearing.
KELLY, J., concurs in this dissenting opinion. *Page 639