the father. The court said that the mere [ It cannot be said, therefore, that in this case fact of the relation of parent and child would there was no evidence of possession except a not make the child the servant of the parent, mere presumption which could be overcome by and held that his liability in such case de- proof of inconsistent facts. Here there was pended upon the relation of master and serv-affirmative proof of the fact of possession, quite apart from any presumption." ant. It said: It then went on to say that, assuming the relation of master and servant existed generally between the father and daughter, yet it did not appear that on the occasion in question she was acting as such within the scope of her employment, and repeated the well-known doctrine that the master was "not responsible if the negligence was committed by the servant when engaged in some private matter of his own." It is contended that the doctrine of that case has been very much modified, if not reversed, by that court in Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322. In that case Hays had purchased a car for the general uses of his family, and it was for that purpose habitually operated by the owner and his two sons, sometimes with and sometimes without his express consent and direction. At the time of the accident one of the sons was driving the car, and in it were the wife and daughter of the father and two guests. The court said in the Doran case: "No other members of the father's family were in the car. The only element in the case tending to show that the daughter was acting as the servant of the father was the bare fact that the father owned the automobile, which, being personal property,, was presumably, in the absence of evidence to the contrary, in his possession or the possession of his servant at the time of the accident; possession being the badge of ownership of personal property. This presumption, however, in that case was overcome by the uncontradicted proof that in fact the automobile was not in the possession of the owner or his servant, but that, on the contrary, it was in the possession of a third party (who happened to be his daughter), who was using it for her own pleasure and the pleasure of her friends, and not upon the owner's business." The court then went on to say that in the Hayes Case there were the father's immediate family and their guests; that "This fact constituted affirmative evidence that the automobile was being used in the father's affairs or business. It was within the scope of the father's business to furnish his wife and daughter, who were living with him as members of his immediate family, with outdoor recreation, just the same as it was his business to furnish them with food and clothing, or to minister to their health in other ways. The court said that there was also evidence that the son invited his mother and sister to take a ride as his guests on a trip which he was taking for his own pleasure or business, and that they were doing so as such, and not as members of his father's family, and hence it became a question for the jury to decide, and added: "We think the question was one of fact, and that it was properly submitted to the jury." But the case of Doran v. Thomsen was not overruled, but expressly affirmed. There seems to be some misunderstanding about the doctrine adopted in Maine. In Farnham v. Clifford, 116 Me. 299, 101 Atl. 468, the court did not hold that the father was responsible because he bought the machine for the pleasure of himself and family, but the motion for a new trial which was then being reviewed was distinctly overruled on the ground that after the accident, with full knowledge of the facts, the father admitted his liability, and when he went upon the stand he did not deny that he had so admitted and did not contradict or explain the statement alleged to have been made by him, but allowed it to pass as true and unchallenged. The court said that that authorized the jury to find that he knowingly made the admission and that his admission was true. In Farnum v. Clifford, 118 Me. 145, 106 Atl. 344, the court said that an instruction was without error which said: "Liability cannot be cast upon the defendant in this case because he owned the car, or because the driver at the time of the accident was his son, or because he permitted his son to use the car. There must be the further relation of master and servant between them, and the son at the time of the accident must have been using the car in the business of the defendant." In Pratt v. Cloutier, 119 Me. 203, 110 Atl. 353, 10 A. L. R. 1434, it was held, quoting for convenience from the syllabus in the Atfor convenience from the syllabus in the Atlantic Reporter: "A father who furnishes an automobile for the pleasure of his family, and allows his minor son to drive whenever he desires, is not responsible to a third person for the son's negligence while using the car solely for his own pleasure." That case reviewed a number of others and pointed out that the citation of Farnham v. Clifford, 116 Me. 299, 101 Atl. 468, by the court in Johnson v. Smith, 143 Minn. 350, 173 N. W. 675, in support of the Minnesota doctrine, was not justified. It also cited the case of Maddox v. Brown, 71 Me. (116 A.) 432, 36 Am. Rep. 336, to show that in Maine | 89 S. E. 876; Blair v. Broadwater, 121 Va. the doctrine then being applied to automo- 301, 93 S. E. 632, L. R. A. 1918A, 1011. biles was announced in the case of a minor son taking his father's horse and carriage, which he had been allowed to use without restriction. In the case of Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443, L. R. A. 1917F, 363, the Court of Appeals of New York, in speaking of the doctrine that the father is liable in such cases, says: "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." After saying that an affirmative answer had been given by the courts of some states (citing Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. [N. S.] 59; Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487; Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994; and two cases of Missouri Appeals which have been overruled by the Supreme Court of that state), that court said: "But it seems to us that such a theory is more illusory than substantial, and that it would be far-fetched to hold that a father should be come liable as principal every time he permitted a capable child to use for his personal convenience some article primarily kept for family use. That certainly would introduce into the family relationship a new rule of conduct which, so far as we are aware, has never been applied to other articles than an automobile." But we will extend this opinion to an unreasonable length if we continue to quote from the cases. We will content ourselves by referring to some others maintaining the views of those referred to above, such as: Arkin v. Page, 287 Ill. 420, 123 N. E. 30, 5 A. L. R. 216; Smith v. Weaver (Ind. App.) 124 N. E. 503; Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946; Knight v. Cossitt, 102 Kan. 764, 172 Pac. 533; Watkins v. Clark, 103 Kan. 629, 176 Pac. 131; Stafford v. Noble, 105 Kan. 219, 182 Pac. 650; Weiner v. Mairs, 234 Mass. 156, 125 N. E. 149; Woods v. Clements, 113 Miss. 720, 74 South. 422, L. R. A. 1917E, 357; Id., 114 Miss. 301, 75 South. 119, L. R. A. 1917E, 357; Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096; Heissenbuttel v. Meagher, 162 App. Div. 752, 147 N. Y. Supp. 1087; Elms v. Flick, 100 Ohio St. 186, 126 N. E. 66; McFarlane v. Winters, 47 Utah, 598, 155 Pac. 437, L. R. A. 1916D, 618; Cohen v. Meador, 119 Va. 429, There are quite a number of cases which are generally classed with the courts taking the view that the owner is liable under the circumstances referred to above, in which the child was driving the car with or for other members of the family. It was said in Pratt v. Cloutier, supra, that— "Few, indeed, of the many cases cited will be found to go so far as to hold a father liable when a son, alone in the father's car, seeking only his own pleasure and entertainment, and while so engaged injures a third party. The reason for finding the father liable in the cases so holding is usually founded on the fact that one other member of the family, at least, accompanied the driver, thus raising the questions which in each case have gone to the jury." The appellee contends that there can be no valid distinction made between such cases and those in which a son was driving wholly for his own purposes, without having any other member of the family with him, but courts of standing have made such distinctions as shown by the cases, and when they have done so they have generally held that, when there is another member of the family being driven by one, it is for the jury to determine whether the driver was acting for himself alone or for his father. In this case it is shown that there was no oth er member of the family with the son, and hence we need not discuss the effect, if any, of such difference in the facts. The appellants state in their brief that Benton v. Regeser, 20 Ariz. 273, 179 Pac. 966, Lewis v. Steele, 52 Mont. 300, 157 Pac. 575, Boes v. Howell, 24 N. M. 142, 173 Pac. 966, L. R. A. 1918F, 288, McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775, Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487, and Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631, were cases in which the child was driving with or for other members of the family, but we have not thought it necessary to examine to see whether those courts have passed on the question when the driver was the only member of the family in the car. The states of Kentucky, Minnesota, Tennessee, and Washington have not made such distinctions, and hence it must be conceded that there is conflict between the authorities, although some cases in several of those states would seem to be more in favor of the appellants' contention than that of the appellee. The cases of King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293, and Birch v. Abercrombie, supra, have perhaps presented the views of those holding the father liable as forcibly as any of the others, and seem to be leading cases. In chapter 26 of Berry on Automobiles (3d Ed.), beginning on page 1072, § 1160, and Huddy on Automobiles (5th Ed.), beginning with section 656, on page 849, and continuing to section 662, on page 863, most of the cases are cited in the notes, but it would take a good-sized volume to discuss all of them fully and point out wherein they differ with other decisions. In Michigan, where the courts were also in accord with the view we have announced as to this question, the rule has been changed by statute, which would seem to us to be a far preferable way if it be deemed best to adopt the other rule, rather than to run counter to well-established principles in reference to master and servant and principal and agent, which cannot stand in their integrity if some of the automobile cases we have found are to be followed. It is said in Hatter v. Dodge Bros., 202 Mich. 97, 167 N. W. 935: "As the law now stands, it is not a pre-requisite for recovery to prove that the motor vehicle causing an injury was being operated in the business of the owner, for his use and enjoyment, or by his servant or employee." red merely from the relationship of husband and wife; that Mr. Charles was using the machine (which belonged to his wife) not for any business of his wife, but in connection with his own occupation, and the use of it was merely a permissive use. [3, 4] There can be no difficulty about the question of the alleged adoption of the act of E. Ray Myers by Howard E. Myers. The general rule is thus stated in 1 Am. & Eng. Enc. (2d Ed.) 1185: "The doctrine of ratification applies as well to torts when done to the use or for the benefit of him who subsequently adopts them as to matters of contract. * ** But, to hold one responsible for the tortious act of another not committed by him or by his order, the adoption must be explicit and with a full knowledge of the facts." In addition to the fact that the alleged wrong was not done in the interest or for the use or benefit of the father, as required to make him liable (1 Cooley on Torts [3d Ed.] 214, 217; 1 Poe on Pl. & Pr. 481, 525; Hammond v. Du Bois, 131 Md. 116, 154, 101 Atl. 612), the alleged ratification was far from being explicit and with a full knowledge of the facts. If many Legislatures adopt such a rule as that, it will probably be because so many automobilists seem to forget at times that they do not have the right to the exclusive use of the highways, but it would be better [5] The plaintiff testified that the next to pass and enforce stricter laws in the use morning after the accident, in the presence of the highways than simply provide for re- of his son, Howard E. Myers said to him covery of damages, which cannot restore life that, "if his son was to blame, he was willor always compensate for injury. ing to 'daddy' the blame." Raymond DayWhile our decisions have not hitherto def-hoff testified that the day after the accident initely settled the main question herein in- he said, "if his son had done any damage to volved, they have approached it in some re- the plaintiff's 'automobile,' he would stand spects, and they place us more in line with all expenses or damages." As the plaintiff the courts which have held that, under such had no automobile in the accident, there is facts as we have in this case, the plaintiff manifestly some mistake in that testimony. cannot recover. The opinion in Whitelock v. Carroll Owings said he told him that, "if his Dennis, 116 Atl. 68, filed December 2, 1921, boy did it, he was willing to 'daddy' it, and, is the last one on the general subject, and if he didn't to it, he don't feel that he ought we need not dwell on Symington v. Sipes, to do it." It could hardly be said that there 121 Md. 313, 88 Atl. 134, 47 L. R. A. (N. S.) was an explicit adoption of the act of the 662 and State, Use of Debelius, v. Benson, son, and the father showed by his testimony 129 Md. 693, 100 Atl. 505, therein referred that he did not have a full knowledge of the to at some length. It may be well to say It may be well to say facts when he said what he did. that in Buckey v. White, 137 Md. 124, 111 on the stand in rebuttal and denied that he Atl. 777, we said enough to show that, but then said what Mr. Dayhoff testified to, and for the technical reason therein stated why in answer to what he said to the plaintiff we could not do so, we would have reversed he testified: that judgment on the ground that there was not enough in the record to show that the fa-him at home, that if the boys were the cause "I told Mr. Shipley before I left home, I told ther was liable, although it was shown that of this, I would stand by them. After I went the car was purchased by him and used in out there I found there was another car, and I his business and from time to time for the told Mr. Shipley I wouldn't daddy the other felconvenience of his family. It was being low's dirt." driven by his son, Earl Buckey, who was then about 22 or 23 years of age, lived with his father, and assisted him in his business. At the time of the accident the son, who had the privilege of using the car whenever he wished, was driving friends to a dance. In Charles v. Mayor, etc., of Baltimore (decided May 13, 1921), to be found in 138 Md. 523, He went [6] There is no contradiction of that, and, if a person ratifies an act of his agent before he knows the material facts, he may afterwards disaffirm. Adams Exp. Co. v. Trego, 35 Md. 47; Bannon v. Warfield, 42 Md. 22. Mr. Myers did what the court said in Farnham v. Clifford, 116 Me. 299, 101 Atl. (116 A.) done, and he could not have been held lia- | appeal by one defendant in case of a joint judgble on the ground that he had made such qualified statements as it is claimed he did make. [7] We are of the opinion that the defendants' first prayer should have been granted. We said in Whitelock v. Dennis, supra, the presumption arising from such facts as we referred to in Stewart Taxi Service Co. v. Roy, 127 Md. 70, 95 Atl. 1057, can be rebutted, and we referred to the fact that in Symington v. Sipes, supra, and State, Use of Debelius, v. Benson, supra, we had approved prayers which instructed verdicts for defendants on the ground that the drivers were not acting within the scope of their employments, notwithstanding the presumption referred to. We will only add to that what was said by Judge Thomas, in speaking for the court, in Dearholt Co. v. Merritt, 133 Md. 323, 330, 105 Atl. 316. After referring to Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 Atl. 833, Geiselman v. Schmidt, 106 Md. 580, 68 Atl. 202, Stewart Taxi Co. v. Getz, 118 Md. 171, 84 Atl. 338, Symington v. Sipes supra, State, Use of Debelius, v. Benson, supra, and National Mech. Bank v. Nat. Bank of Baltimore, 36 Md. 5, he said: ment against all defendants, an appeal by plaintiff from a judgment on directed verdict in favor of one defendant after plaintiff recovered judgment against the other defendant will not be dismissed for lack of proper parties to the appeal, or because the court could not order a new trial. Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Walter C. Mylander and Charles M. Armstrong, both of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellant. Clifton S. Brown and W. Herdman Schwatka, both of Baltimore (W. Conwell Smith, John D. C. Duncan, and Duncan & Schwatka, all of Baltimore, on the brief), for appellees. "The effect of the Maryland cases referred to is that, where the evidence in the case, whether produced by the plaintiff or by the defendant, BOYD, C. J. It is only necessary to state is uncontradicted and clearly shows that the the facts in this case in so far as they will person in possession of the vehicle or machine reflect on the liability of the mother, Josewas not at the time of the accident the servant phine E. Smith, in order to see that the deor agent of the owner, there can be no recov-cisions of this court in Whitelock v. Denery against the owner, and that the case should be withdrawn from the jury." He then went on to show that Stewart Taxi Service Co. v. Roy, 127 Md. 70, 95 Atl. 1057,. did not establish a contrary rule. It follows that the judgment against Howard E. Myers must be reversed, and, as there could be no recovery, a new trial will not be awarded, but, for reasons stated above, the judgment against E. Ray Myers must be affirmed. Judgment against E. Ray Myers affirmed, and judgment against Howard E. Myers reversed, without a new trial, one half of the costs above and below to be paid by E. Ray Myers, and the other half by the appellee. (140 Md. 437) nis, 116 Atl. 68, and Myers v. Shipley, 116 Atl. 645, decided at the present term, are conclusive of the main question involved in it. At the time of the accident Helen E. Smith, the daughter of Josephine E. Smith, who was |22 years of age, was driving the car and had with her two of her friends, young ladies who were not members of the family, or connected with it in any way which could possibly affect the question. They were on the way to a wedding to which the two daughters and the only son of Mrs. Smith had been invited, but neither the mother, the other daughter, nor the son was in the car. Although Mrs. Smith, who was called by the plaintiff as a witness, was examined as to whether she was invited to the wedding, she testified that she was not, but the invitation was directed to "C. R. Smith and Sisters" BAITARY, to Use of MICHAEL, v. SMITH C. R. Smith being her son. It could have et al. (No. 123.) (Court of Appeals of Maryland. Jan. 27, 1922. Appeal and error 323 (4)-Appeal by plain- made no difference if she had been invited, and we only refer to it to illustrate the extent to which those adopting the family car doctrine seem to go in attempting to hold an owner of a car used for family purposes liable for injuries sustained by the alleged negligence of a member of a family. In view of the tendency of legislation, man- The car was purchased by the mother, at ifested by Acts 1914, c. 433, permitting an the instance of her three children, for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes family use, and was driven by either of the three children as was found convenient and desirable. The mother did not drive it, but had the use of it. She had a mortgage which matured, and her children persuaded her to purchase an automobile, and in order to compensate her for loss of the income on the amount invested each of the three paid her $1 a week. If they needed a new tire, they divided the cost between the four, and they paid for such things as gasoline, oil, etc., according to their use of the car. The three children used it without getting special permission from their mother, but they generally let her know when one wanted to use it, so there would be no conflict between them in such use. At the time of the accident Miss Helen was the only member of the family who was using it. As there is nothing in the facts in reference to the ownership and use of the car which could distinguish this case from Myers v. Shipley, supra, we will not prolong this opinion by repeating what we there said, or again citing the authorities referred to. There was something said at the oral argument, and in some additional notes filed, as to the alleged joint ownership of the car, but we do not understand that there is any material difference between the appellant and the appellees as to that. The appellant's additional notes began by saying: "We do not claim that joint ownership creates liability on the part of each for the acts of the other. What the authorities have held is that when the use by one of a car is for the purpose of a 'joint enterprise' (whether the car is owned jointly or not), and an injury to a third party in the course of such use happens, liability exists against all the parties interested in the joint enterprise." The appellees' attorneys state in their notes that: "When an automobile jointly owned is at the time of accident being operated, not by a servant, but by one of the owners, for his own purpose, the owner or owners not participating in the trip are not liable"-citing Huddy on Automobiles (5th Ed.) § 668, p. 872; Babbitt on Automobiles (Ed. 1917) § 843; Berry on Automobiles (3d Ed.) § 1037, p. 967; and some decisions which we need not cite. There is nothing in the record tending to show that when the accident occurred the mother and children were engaged in a "joint enterprise," and we will not discuss that further. There was a motion to dismiss the appeal: (1) "For a lack of proper parties to the appeal; (2) because the court, even if inclined to reverse the judgment below, could not order a new trial." The defendants pleaded separately the general issue plea. There was a judgment on a directed verdict in favor of Josephine E. Smith, and a judgment in favor of the plaintiff for $6,500 against Helen E. Smith. The plaintiff appealed from the one in favor of Mrs. Smith. While before Acts 1914, c. 433, in case of a joint judgment against two defendants it was necessary for both to appeal or for the one desiring to do so to apply for a summons and severance, that act provided, "and such appeal may be taken with or without the assent or joinder of coplaintiffs or codefendants in such appeal," and thus changed the law when one of two coplaintiffs or one of two codefendants intended to appeal. If there ever was any difficulty in a plaintiff taking an appeal in a case such as this, where there was a judgment in favor of one of the defendants and one against the other defendant in favor of the plaintiff, which we need not discuss, but do not concede, the act referred to shows the tendency of our Legislature, although the terms of the statute may not, strictly speaking, cover the case, and we will not dismiss the appeal, especially as we can have no difficulty in affirming the judgment appealed from. Judgment affirmed; the appellant to pay the costs. (273 Pa. 131) WILLIAMS et ux. v, F. & W. GRAND FIVE, TEN AND TWENTY-FIVE CENT STORES, Inc. (Supreme Court of Pennsylvania. Feb. 13, 1922.) 1. Master and servant 302(3)-Store owner liable for acts of manager permitting private detective to assault patron. Where manager of a store participated in an assault on a patron by an operative of a private detective agency employed for the protection of the store, by his presence and failure to lend protection when he could and should have protected her, the owner of the store was liable. 2. Appeal and error 930 (1)-Verdict sustained by trial court viewed in most favorable light. When a verdict is sustained by the trial court, the record on appeal will be viewed from every standpoint in a light most favorable to appellee. 3. Appeal and error 589 - Points not in statement of questions involved not considered. Ruling on evidence not mentioned in the statement of questions involved cannot be considered on appeal. Appeal from Court of Common Pleas, Philadelphia County; J. Willis Martin, Judge. Action by Thomas W. Williams and wife against the F. & W. Grand Five, Ten and |