This is an action by plaintiff as the widow of one Mack Plays, deceased, against the defendants, father and son, to recover for the death of plaintiff’s husband on account of the negligence of J. E. Hogan; the son, in operating an automobile on one of the public highways of Howell county,, causing a team to run away with a wagon in which the plaintiff’s husband was riding, throwing him out and killing him.
A trial was had on a change of venue in Greene county before the court and a jury which resulted in a verdict (the original of which has been, as is author*242ized by section 2053, Revised Statutes 1909, submitted to and examined by us) in the following form, as near .as we can give it:
“We, the jury, find the issues in favor of the plaintiff and against both defendants, J. E. Hogan and R. S. Hogan, and assess her damages at the sum of $6500 00 six thousand $5 00 dollars.” Upon this verdict judgment was entered in the language and form thereof.
Within four days after the return of said verdict, •the defendants filed their motions for new trial and in .arrest of judgment, complaining, among other things hereinafter noted, of the verdict and judgment on account of its form as aforesaid. The motions were sustained and the plaintiff has appealed.
The plaintiff concedes that the verdict is ambiguous as to the amount above $6005 and we shall so treat it and direct judgment to be entered thereon for that amount, which the holding in Shaefer v. Mo. Pac. Ry. Co., 98 Mo. App. 445, 456, 72 S. W. 154, authorizes in such cases as this, irrespective of the desire of the .parties to the litigation.
The trial court should not have permitted judgment to be entered on this verdict in its ambiguous 'form and thereby render the judgment as faulty as the ’verdict. Judgment should have been entered for whatever amount the court considered correct, so that in the event of no appeal, if an execution should be issued thereon, the amount mentioned therein would be certain. If the trial court under such circumstances incorrectly determines the amount which should prevail, this error can be corrected on appeal.
About one year prior to the accident the defendant, R. S. Hogan, the father, purchased an automobile for the use of'himself and his family which consisted -of several members, including the defendant, J. E. Hogan, and two other sons, all of whom learned to 'operate the machine; but the father had not learned to ^operate it. The defendant son had reached his major*243ity, was married, worked in the bank of which his father was president, and lived with his father’s family at West Plains as a member thereof, paying no board. The father testified that when he purchased the machine none of the children was to use it without his or his wife’s consent, but that at no time had any of them been refused the use of it when requested. The defendant son used the machine on many occasions prior to the date of the accident. On May 27, 1912, the day on which the accident occurred, the father was absent from the county. The defendant son was working in the bank as usual. That afternoon the machine was left in front of the bank by the mother and at about 4:30 in the afternoon the defendant son and other employees in the bank took the automobile and went into the country a few miles for a pleasure ride, and returning home, running at a high rate of speed, they approached the wagon in which plaintiff’s husband was riding to which was hitched a team of mules headed toward the automobile. When within a short distance of the automobile, the mules, which had turned to the right and out of the beaten portion of the road, began to scare, and the plaintiff’s husband, who was riding in the rear seat, stood up in the wagon, signaled and called to the occupants of the automobile to stop. They did not, however, slacken their speed and as they passed the mules lunged forward, ran away and threw plaintiff’s husband out of the wagon, injuring him so that he died within a few minutes thereafter. We have referred to the facts most favorable to the plaintiff, as it is our duty to do in a case of this character, although there is testimony to the contrary.
When the ownership of the machine was conceded the presumption arose that when defendant’s son was using it he had his father’s consent therefor and the burden was then cast upon the father to prove to the satisfaction of the jury that no consent was given. [Shamp v. Lambert, 142 Mo. App. 567, 575, 121 S. W. *244770; Marshall v. Taylor, 168 Mo. App. 240, 246, 153 S. W. 527.] The facts disclosed by the testimony tended strongly to prove that the son had the actual or implied consent of the father and more certainly of the mother. The machine was left standing in front of the bank, where the son was employed, having been left there by his mother and there being no showing that she intended to or did return there for it, and he was -permitted without objection from any one, so far as the testimony discloses, to take it and go upon a pleasure trip with his friends and no doubt the friends of the father. Considering this case upon its merits in the -light of the facts disclosed, and keeping in mind the fact that the father was the owner of the automobile, that the son was of age and resided with him as a member of his. family, that the father was not operating the machine when the accident occurred-but that it was being operated by the son with his implied consent at least, we have a state of facts covered in all of its phases by holdings of the other courts of appeal in this State to the effect that the father should be held liable together with the son for the injuries resulting on account of the son’s negligence in so operating the machine.
The St. Louis Court of Appeals in Winfrey v. Lazarus, 148 Mo. App. 388, 128 S. W. 276, held the owner liable where the owner of an automobile was absent and the owner’s daughter, who was married and lived away from her father (although at this particular time she was at her father’s home occasionally looking after it during his and her mother’s absence), requested her father’s chauffeur to meet her at a certain point and while he was on his way to that place, by reason of his negligent operation of the machine,: caused the damages therein sought to be recovered. The liability was based on the theory that the chauffeur was acting within the course of his employment as the agent and servant of the automobile owner.
*245A judgment was sustained for the plaintiff in the case of Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, in the Kansas City Court of Appeals, where the father and owner of the automobile was not present when the act of negligence was committed but the machine was being operated by his minor son, with his consent for the son to take some of his young friends automobile riding. “It was the boy’s party and his father had nothing to do with it except to give his son the use of the car for the pleasure of his son and his son’s friends.” It was held in that case that the son was the agent of the father and engaged at the time in the business of his service and that, therefore, the father was liable for the damages done by the son in the negligent operation of the machine. It is further said in that opinion: “We conclude that in running the car with the consent of his father and within the scope of family uses, Ernest was the agent and servant cf his father.”
In Marshall v. Taylor, 168 Mo. App. 240, 153 S. W 527, the action was to recover damages by reason of the negligent operation of an automobile by the adult son of the owner, and it was shown that when the father purchased the automobile he contemplated and intended that his son should enjoy it in common with other members of the family, and that in operating the machine for his own pleasure the son was about his father’s business and his agent and servant and the father, although not present at the accident, was held liable because he had consented to the use of the machine in this manner.
The Supreme Court of Oklahoma has cited with approval some of the above cases in McNeal v. McKain, 126 Pac. 742 (Ok.), 41 L. R. A. (N. S.) 775. The Supreme Court of Alabama in Parker v. Wilson, 43 L. R. A. (N. S.) 87, has refused to follow the holding in the Daily case, supra. The Supreme Court of Kentucky in Stowe v. Morris, 147 Ky. 386, 39 L. R. A. (N. *246S.) 244, 144 S. W. 52, and the Supreme Court of Pennsylvania in Moon v. Matthews, 227 Pa. 488, 29 L. R .A. (N. S.) 856, 136 Am. St. Rep. 902, 76 Atl. 219, have followed some of the holdings in the Missouri cases above cited. We are not inclined to criticize tbe doctrines contained in tbe decisions of our other appellate courts as applied to sustain tbe liability of tbe father under tbe facts here disclosed. It has been suggested in some of tbe authorities opposed to tbe doctrines announced by tbe Missouri decisions, and by tbe defendants here, that tbe rules there applied would necessarily lead to bolding that in cases where tbe operation of an automobile was not involved tbe parent ' would be liable for damages caused in tbe negligent use of every instrumentality furnished bis children for their pleasure, even though tbe acts complained of were committed in tbe absence of tbe parent, and to say that this rule of law should be adopted and applied to tbe various and varied affairs of family life would create a dangerous innovation. Without going into a detailed discussion of tbe question of tbe liability of tbe parent for tbe negligence and torts of another member of tbe family committed out of bis presence, we think it sufficient to consider tbe questions here involved as not parallel to those cases in which tbe master is exempted from liability for acts of negligence occurring out of bis presence and without bis connivance, consent, approval or ratification.
The Legislature of this State has seen fit to require the owner and operator of an automobile, before be is permitted to run it upon the public highways of this State, to procure a license therefor and that be shall be amenable to certain laws regulating the use thereof, and bave sought to fix the liability upon him for its use when used by him or by others with bis consent. In the case of State v. Swagerty, 203 Mo. 517, 102 S. W. 483, the act concerning automobiles (Laws of 1903, p. 162) was under consideration and in sus*247taming its constitutionality it was held that, owing to the peculiar characteristics of automobiles, there partially enumerated, that a regulation of their use upon, the highways was a proper subject of legislation. We think that when an automobile is provided for family use and is being used by another member of the family than the owner, but with the owner’s consent, that he should not be heard to say that such other is not his-agent or servant. No dangerous rule is thus established but one in harmony with and conducive to the proper recognition of the legislative enactment. No part of the legislative enactment was invoked by plaintiff except that portion thereof defining the degree of care therein which the operators of -automobiles must exercise.
The defendants contend that this action is based on the statutes relative to motor vehicles and that said statute is unconstitutional. They referred in their instructions to portions of the law not relied upon by the plaintiff. The plaintiff contends that this action is based solely upon and governed by the principles of the common law., although instruction 1, given in her behalf submitted the ease on the degree of care required by the statute. As to the constitutionailty of the motor vehicle law (Laws 1911, p. 322, et seq.) urged upon us, we shall speak later.
Plaintiff’s instruction 1, exacted of the operator of the automobile the exercise of the highest degree of care that a very careful and prudent person would exercise under the same or similar circumstances and hypothetically submitted the question of the son being-the agent and servant in and about the business of his father and using the vehicle for the purposes for which it was kept and maintained by the father.
Plaintiff’s instruction II told the jury that in determining whether the son was the agent and servant of the father and acting by his authority in driving -the automobile that it was not necessary for the jury to *248believe that express or particular authority or direction was given therefor at the particular time and in the particular manner that the same was being used, and that if it was being used at the time of the accident within the scope of the purpose and use for which it was kept and maintained, that then the son was the agent and servant of the father.
Plaintiff’s instruction III covers the question of. the degree of care as referred to in instruction I and tells the jury that by the term “carelessly and negligently” is meant the failure to exercise such degree of care.
Plaintiff’s instruction IY defines reasonable care as such that a reasonably prudent person would exercise under the same or similar circumstances.
Plaintiff’s instruction Y is as follows:- “The court instructs the jury that if your verdict is for the plaintiff, you will allow her such sum as will reasonably compensate plantiff for such necessary injury, if any, as you may find and believe from the evidence plaintiff has suffered by reason of the death of her husband, provided, that you shall in no event allow her a greater sum than ten thousand dollars.” .
The court on its own motion gave an instruction in effect embodying some of the features contained in the instructions given in behalf of the plaintiff.
Eight instructions were given in behalf -of the defendants, telling the jury that the automobile was a lawful vehicle and that the mere happening of the accident would not entitle the plaintiff to recover; that there was no testimony that the son failed to turn his machine to the right when meeting the wagon in which the deceased was riding, as required by the statutes; that the defendant son was not required to stop his automobile merely because he saw the vehicle in which the deceased was riding approaching from the opposite direction and that said defendant was only required to stop in case the mules appeared to be badly *249frightened at the automobile or in case some one in the wagon signaled him to stop, so that by stopping the accident might have been prevented; that the giving of a signal or warning by an automobile is to notify other people using the highway of the approach of the automobile and that if the driver of the team discovered the approach of the automobile without such warning, then the defendant son was not under obligation to give such signal; that if the mules were frightened by the automobile and not by the manner in which it was operated or the speed at which it was going or the failure to stop the same, then the verdict should be for the defendants, or if the evidence left it' in doubt as to whether the mules took fright from the manner in which the machine was operated or the failure to stop or from the sight of the machine itself, that then the verdict should be for the defendants; that even if they found that defendant son did not sound any signal or warning of approach of the automobile, before they could find for the plaintiff, on account of such failure, that they would have to find that the defendants could have given such signal and that the accident would not have occurred had the signal been given and that at the time the deceased was exercising ordinary care and prudence for his own safety; that unless they should find by a preponderance or greater weight of the evidence that the defendant son was guilty of the act or acts of negligence complained of and that the same was the direct and proximate cause of the accident, they should find for the defendant son; and also one instruction (H) on the measure of damages, as follows:
“If, under all the instructions and evidence, you find for the plaintiff, your verdict must be limited to compensation for the injury sustained by the plaintiff and you are not to allow anything for the manner of her husband’s death or any pain or suffering on the part of the plaintiff, nor any sum by way of punish*250ment' for the wrongful act, if you find there was a wrongful act.”
The defendants requested and were refused three instructions: (1) asking the court to charge the jury that the case was based on the negligent running of an automobile, the owner of the ear not being present at the time of the accident, and that he could not be held liable except it were shown that the person in charge of the automobile not only was the agent or servant of the owner but was. engaged at the time in the business of his. service, in the business of his father, and that unless they so found the verdict should be for the father; (J) that if the son was at the time of the accident over twenty-one years of age and driving the automobile for his own pleasure or business and not on account of any business or pleasure of the father, then the father could not be held in any wise responsible for the accident and the verdict should be in his favor; and (K) that if the father had cautioned and directed his son never to use the automobile without first obtaining his or his wife’s permission, and that at the time of the accident the said son was using the automobile without first having obtained permission of either of them, that then the jury should find for the father.
The instructions given embodied all of the material issues made by the pleadings.
The defendants complain of plaintiff’s instruction V on the measure of damages and insist that there is no testimony to sustain a verdict for more than nominal damages in behalf of the plaintiff. They cite the case of McGowan v. Steel Co., 109 Mo. 533, 19 S. W. 199, which has been overruled by Browning v. Railway, 124 Mo. 55, 71, 27 S. W. 644, and Minter v. Bradstreet Co., 174 Mo. 444, 493, 73 S. W. 668, and which was recognized by the court in the case of Haymaker & Crookshanks v. Adams & Son, 61 Mo. App. 581, 586, as being so overruled. In the latter opinion, in which this reference is made, the case of Goss v. Railroad, 50 Mo. *251App. 614, is overruled. The defendants, however, cite rone case (Parsons v. Mo. Pac. Ry. Co., 94 Mo. 286, 296, 6 S. W. 464), in support of their opposition to plaintiff’s said instruction and in support of their nominal damage theory that clarifies the whole situation, so far as that theory is concerned. That case involved an action by a father for the wrongful death of his minor son. It appears that no proof was made of the value of the son’s services or the possible burden of his support, but it is said that they may be measured by the experience and - judgment of the jury, enlightened only by a knowledge of the age, sex and condition in life of the deceased, and the parent is not restricted to the recovery of merely nominal damages because the value of the services of the child or the amount of expenses incurred or paid and other necessaries during illness be not proven. “An intelligent jury, from common experience, may determine, approximately, in any given case, what amount would compensate a parent for all pecuniary losses sustained by reason of the death of a minor child. . . . ” The opinion in that Case was cited with aproval in Sharp v. National Biscuit Co., 179 Mo. 553, 560, 78 S. W. 787, which also cites with approval the case of Nagel v. Railroad, 75 Mo. 653, 665, wherein an instruction, s'o far as the elements complained of in the case at bar, as to plaintiff’s instruction I, are concerned, was approved. In the case of Ogan v. Railway, 142 Mo. App. 248, 254, 126 S. W. 191, an instruction similar to the one complained of here was approved.
The testimony in the case, at bar shows that the plaintiff’s husband, at the date of his death, was fifty-seven years of age, owned his farm upon which he was living and that he did all of the ordinary work as other people, although he used a wooden leg secured by straps around his knee and waist; that he had been married thirty-five years, had eight children and had supported them and his wife. We, therefore, rule *252againt the appellants on their contentions that the jury should have returned a verdict for only nominal damages and that plaintiff’s instruction Y is not erroneous, especially in the view of defendants’ instruction H.
The defendants in their motions for new trial and in arrest of judgment for the .first time insisted that the act concerning motor vehicles (Laws 1911, p. 322) is unconstiutional for the reason that it violates Section 28, Article 4 of the Constitution of this State, in that the title to the act contains more than one subject and because the subjects embraced and covered by the act are not clearly expressed in the title thereof, because said act is special and class legislation and discriminates against the owners and operators of automobles, deprives defendants of their property without due process of law and fails to secure to them equal protection of the law, particularly in violation of Sections 4, 20 and 30 of Article 2 of the Constitution of the State of Missouri; and in that it violates said Sections 4, 20 and 30 and is special and class legislation and discriminates against automobiles and the owners and operators thereof in favor of similar motor vehicles, to-wit: fire wagons, police patrol wagons, ambulances, road rollers, traction engines, etc., and also because it violates Section 1, of Article 14, of the Amendments to the Constitution of the United States in that it abridges the privileges and immunities of citizens of the United States, and because the effect of said act will result in depriving persons, especially automobile owners and operators and these defendants of their property without due process of law and deprive them of the equal protection of the law; and because it violates said Sections 4, 20 and 30 of said Article 2 of the Constitution of the State of Missouri for the same reasons.
If, as the defendants now contend, the action is based upon the statute then their alleged constitutional rights were invaded when the suit was commenced, and *253if the character of the action was not disclosed by the petition it was disclosed, giving them the benefit of the most liberal construction, by the instructions to the jury. Our Supreme Court in the case of Hartzler v. Met. Street Ry. Co., 218 Mo. 562, 564, 117 S. W. 1124, held that under such circumstances the motion for a new trial was not the first door open for the constitutional question to enter and that, therefore, it should be held to be waived. Other decisions are of the same import. [Lohmeyer v. Cordage Co., 214 Mo. 685, 689, 113 S. W. 1108; State v. Gamma, 215 Mo. 100, 103, 114 S. W. 619; Milling Co. v. Blake, 242 Mo. 23, 31, 145 S. W. 438; George v. Railroad, 249 Mo. 197, 155 S. W. 453.] Defendants insist that it necessarily follows that if plaintiff’s action is based upon the statute that at no time did the plaintiff have a cause of action stated and that, therefore, the question can be raised at any time; but we are unable to conceive of any reason for making a different application of the rule requiring diligence in raising these questions in a case where it is apparent upon the petition and in any other case, because, if it is a matter that can be waived, is seems that it should be held to make no difference as to how the question arises. It is a question of diligence in taking' advantage of the first opportunity offered therefor and the cases last above cited, which are the latest rulings of the Supreme Court upon the question, are controlling upon us in holding that irrespective of how the question arises the defendants can waive it.
The judgment is reversed and the cause remanded with directions to set aside the order granting the defendants a new trial and to enter judgment upon the verdict for six thousand and five dollars.
Farrington and Sturgis, JJ., concur.