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American Government Special Collections Reference Desk


The New York Times
March 20, 1921

Since there is an automobile in the United States for every ten persons, including infants in arms and Indians not taxed, this chariot of democracy is near to the business and bosom of multitudes, whose joy in ease and motion is only tempered by the necessity of putting money enough in their purses to pay their fines.  The "family automobile," which the owner uses for the benefit of his family, is perhaps the commonest variety.  Suits for the negligent use of such domestic cars by members of the family are common.  It is pretty hard for the owner to make out just what his liability is.  An article in The Michigan Law Review discusses cases and doctrines on this point.  A father is not liable for the negligence of his child on the mere fact of ownership; nor does the mere relationship of father and child make the former liable per se.  It is "substantially agreed" that the father is liable if the child drives as his actual agent; and, of course, pater can't be made to pay when the boy agent turns business into pleasure, or takes the car out against orders.

Then we come into a tangle of difficulties.  If the negligent son is the licensed chauffeur of the family, or if he is driving its members at his father's command, or implied request, the father's liability is clear.  Difficulty leaps up when a child, permitted to use the car for his own purposes, is driving it either alone or with non-members of his family when the accident happens.  Some courts, by a rather metaphysical extension of the doctrine of "family purpose," apply it when he is driving for his own purpose.  They assume that the car, at the moment of accident, was used for the object or business for which the owner kept it, the driver acting as the owner's agent.  Other courts think that this theory breaks the neck of logic and tortures the principles of agency.  Then they proceed to strain and stretch the theory of liability curiously, at least to the darkened eyes of laymen.  It is papa's duty to amuse his children.  They are acting as his agents when they take a spin in the machine.  One salutes with gratitude the ironical Judge who says:

If daughter took her friend riding, she might think she was out merely for her own pleasure; but she was mistaken; she was conducting father's "business" as his "agent."  If son took his best girl riding, prima facie it was father's little outing by proxy; and if any accident happened, prima facie father was liable.

A doctrine this of "theoretical and attenuated agency," as the New York Court of Appeals says.  The latest decisions tend to release the father from liability for the tantrums of his offspring out for a "spin" on his own hook.  If father is liable for every tort of every member of his family, seeking pleasure and recreation, he would be liable for his son's unhappy performances with a golf club, a horse, a gun.  This liability in the case of a horse has been distinctly denied by a Maine court.  The theory that a driver using his machine for his own purposes is the agent of somebody else for some other purposes is queer logically and has arisen from the "dangerous character" of the automobile.  As one Judge has said delightfully, the old legal maxim is amended so as to read, "Qui facit per auto facit per se."  Yet this inherent peril of the automobile, this theory that it is an inherently dangerous instrumentality, seems to have been rejected by almost every court that has ruled on the subject.  The Michigan Law Reviewer comes to this conclusion:

One of two alternatives faces the courts:  either they must, considering the great increase in the number of "family cars" resulting in negligent use by reckless young drivers on crowded streets, desert their old ideas on the danger of the automobile, and henceforth recognize it as an instrumentality within the rule whereby owners of dangerous agencies are held liable for their use by any person (except in cases of independent acts or acts of God), or the Legislatures of the several States must come to their aid with statutes fixing the liability of the owners.  The attenuated agency theory will not stand.

Pretty soon every family will have an automobile; yet automobiles and automobile owners seem to have few friends in or out of court.  Such is the discredit that a few thousand idiot or maniac drivers have brought upon multitudes of sober and discreet citizens, tender of human life and limb and shrinking before pragmatical constables.

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