Thornton, D. L.

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University of Kentucky

Kentucky Law JournalVolume 21 | Issue 2 Article 91933Agency--Family Purpose Doctrine in Case of AdultChildD. L. ThorntonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationThornton, D. L. (1933) "Agency--Family Purpose Doctrine in Case of Adult Child," Kentucky Law Journal: Vol. 21 : Iss. 2 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol21/iss2/9202 KENTUCKY LAw JoURNALThere has been much discussion in the cases as to the extent towhich the means employed must be adapted to the accomplishmentof the intended crime, in order to render one guilty of an attempt.And at this stage of the law, we may consider it well established both-in England and this country, that an apparent possibility to committhe crime is sufficient, but means used must not be so preposterousthat there is not even an apparent intent.D. T. Mxurnf.AGBNoy-IF'Amy PuRPosE DoOTiNE ix CASE oF ADuLT CHI.--.mother who was living with her son, aged 30 and self supporting, wasgiven -by him an automobile upon which a liability insurance policywas issued in her name with an omnibus coverage clause. The sonwho did all the driving was using the car for business purposes withhis mother's permission and later took some friends to a road housenear the city. On the return trip he collided with a street car injur-ing the automobile and some of the guests. One of the injured partiesbrought suit for personal injuries against the driver, the owner andthe street car company, and was given a judgment against the driveronly who was found to be execution proof. A second action was thenbrought against the insurance company and recovery allowed on thegrounds that the omnibus coverage clause in the owners insurancepolicy was broad enough to include her son who was driving. U. S.Fidelity and Guaranty Company v. Hall, 237 Ky. 393, 35 S. W., (2nd)550 (1931).While the statement in the case that the family purpose doctrine'does not apply where an adult son inflicts injury while driving hismother's car with her permission, is perhaps no more than dictum, asthe case apparently turns upon another point, still, it presents aninteresting problem.It seems well settled in those states which have adopted the familypurpose doctrine that the liability of the -parent must rest upon thedoctrine of agency, or the master and servant relationship of whichagency is an outgrowth and expansion. (31 Cyc. 1191). Sale v. Atkins,206 Ky. 224, 267 S. W 223 (1924), G'rer v. Woodsde, 200 . C. 759,158 -S. E. 491 (1931). It cannot rest upon the theory that an automo-bile is a dangerous instrumentality, for it is not so considered. Tylerv. Stephan's Administratrix, 163 Ky. 770, 174 S. W 790 (1915). Neithercan it rest upon the relation of parent and child, for a parent is notgenerally liable for his children's torts. Arkzn v. Page, 287 Ill. 420, 123N. E. 30, 5 A. L. R. 216 (1919). It follows that, regardless of whetherthe child is an adult or - minor, the parent is not liable unless it isfound from the facts that there is the relationship of principal andagent.It does not, however, follow that when a child becomes of age, hecan no longer be his parent's agent under the family purpose doctrine.In Malcolm v. Nunn, 226 Ky. 275, 10 S. W (2nd) 817 (1928), the courtSTUDENf NOTESin denying the liability of the father for injuries inflicted by the sonwhile driving the family car, put it on the grounds that it Was notshown the son was under twenty-one, and was acting as the agentof his father, or on any mission of his father. In spite of this state-ment, which is at the most dictum to the contrary, the law seems to bethat the owner of an automobile is not relieved from liability underthe family purpose doctrine merely because the use of the car wasmade by an adult child. Watson v. Burley, 105 W Va. 416, 143 S. E. 95(1928).Where a child takes the family car for pleasure with the consentof his parent, the parent's liability 'as principal is predicated uponthe theory that a parent makes it -his purpose or business to providepleasure and recreation for his family, and the child, using the carfor pleasure, is engaged in his business and is therefore his agent.Stowe v. Mo&r, 147 Ky. 386, 144 S. W 52, 39 L. R. A. (N. S.) 224(1912). It would appear when the child reaches his majority andbecomes self supporting, his recreation and pleasure is no longer thebusiness of his father. An adult son living in his father's family andpaying board, is not the servant of his father within the family pur-pose doctrine, in taking the latters car with his tacit permission fora pleasure ride of his own. Bradley v. &chlnizt, 223 Ky. 784, 4 S. W(2nd) 703, 57 A. L. R. 1100 (1928).In the case just cited, Judge Dietzman appears to have clearlyand correctly stated the law when he said. "While it may be true thata parent may be responsible for the negligence of his child in operat-ing, with the parent's consent, an automobile maintained by the parentfor the family use where the child is living in the household of theparent as an object of his bounty and is a person whom the parentis under a moral and legal obligation to support, although the childmay be using the machine for a trip for his own pleasure, yet, wherethese elements are not lresent, no grounds of liability on the part ofthe parent can be discovered."After a careful search, no cases have been found where a parenthas been held liable under the family purpose doctrine for the negli-gence of an adult child driving the family car. When the cases havearisen, liability has always been denied, usually on the grounds thatthe driver did not have his parent's permission or was not on hisbusiness. The way, however, does not seem to be closed to establishsuch liability should the facts warrant.Does the law make any distinction, as regards liability under thefamily purpose doctrine, whether the owner of the family car is thefather or mother of the driver 9 This is our remaining problem.No distinction was found in a~ny of the cases examined, and noreason is seen why such a one should be made. The Kentucky courtshave definitely established the law that the family purpose doctrine isjust as applicable where the mother, though married, owns the carand maintains it for the general use, pleasure, and convenience ofKENTUCKY LAW JOURNALmembers of her, family, as it is when the father owns the machine.Wallace v. Hall, 235 Ky 749, 32 S. W (2nd) 324 (1930), Steele v.Age's Admniistratnx, 233 Ky. 714, 26 S. W (2nd) 563 (1930).From a comparison of the cases found, the conclusion is reachedthat the Kentucky courts -have gone further in the development of thefamily purpose doctrine in general, and this phase of it in particular,than any of the other jurisdictions where the doctrine has been adopted.Vrery few cases were found in other states on the problem here dis-cussed, but those found, were in general accord with the Kentuckydecisions. It does not appear that this question has ever been raasedin any of the Federal courts.In the light of this discussion, the statement in U. S. 'idety andGuaranty Company v. Hall that where an adult sohi inflicts injurywhile driving his mother's car with ter permission, the family pur-pose doctrine does not apply, seems to be a correct statement of lawwhen considered in connection with the facts there given. As a generalstatement, however, it is perhaps too broad, for a situation might arisewhere the doctrine would apply to a mother and her adult son.D. L. Ttopmmo.JURISDICTO--SITUS OF CuR~.-A news item of September 30,1931, issue of the Courier-Journal carried the following miews storyHuntington, West Virginia, September 30, 1931."A federal court here gave a directed verdict for the defendant,S. T. Lambert, for the fatal shooting of Prussey Lowe, of Pike County,Kentucky" The United States District Attorney said that West Vir-ginia lacked jurisdiction, because the defendant stood in West Vir-ginia and fired across the Tug River and killed the deceased, inKentucky.This is not an unusual occurrence, and the courts are frequentlyfaced with this problem of jurisdiction. And if he is to be tried 2neither state, for what offenses can he be tried? Because of this per-plexing problem, most of the states have enacted statutes to simplifythis question, however, this will be treated as far as possible by thecommon law of the various states. And as far as possible, from thestandpoint of State A, where the culpable person was standing at thetime.In the treatment of this crime, it is apparent that there is a lackof the elements which complete the crime; for here the defendant isstanding in West Virginia with intent to do certain things which, ifcompleted in that state, would be a felony; but instead, he releasesa force sufficient to span the distance to his victim, who is in anadjoimng state. Now let us follow this leaden messenger in its courseacross the boundary to the intended person. Here are other elementswhich constitute a crime, whereby the injured person receives a mortalblow from a force set in motion in a foreign state. To make thisproblem more complex, let the injured man be removed to a third

Agency--Family Purpose Doctrine in Case of Adult Child

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Agency--Family Purpose Doctrine in Case of Adult Child

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