Owner of an automobile is not liable as a matter of law for injuries occasioned by negligence of minor son, who held a chauffeur's license, while using the vehicle for his own pur-"that he had not given him any directions poses with father's permission.

(116 A.)

the negligence of a son or daughter while [1] While we have fully recognized the driving an automobile owned by the parent, right of owners of automobiles to use the particularly if the child is a minor. Some of public highways in a lawful and proper way, the cases are in irreconcilable conflict, while and fully concur with the cases which have others can be reconciled when the facts are said that an automobile is not such an incarefully inquired into. Whatever view we herently dangerous machine as makes the may adopt on some question, it may as well rule requiring extraordinary care of danbe conceded in advance that it is probable, gerous instrumentalities applicable to such if not certain, that there may be found de- a means of conveyance (2 R. C. L. 1190, cisions to the contrary. If there were mere- and cases cited; Symington v. Sipes, 121 Md. ly two lines of cases, and we were called up- 318, 88 Atl. 134, 47 L. R. A. [N. S.] 662), we on to determine which of the two we would have not overlooked the fact that it may follow, we would have an easier task, but the become, in the hands of incompetent or caredifficulty is that we may agree with one line less drivers, dangerous to others using the on some points and differ with the cases in highways, and in the running of them reait on other points involved in them. There sonable care must be exercised and the driver are, however, some rules connected with or must have in mind that he does not have closely related to those which can be said the exclusive right to use the highways to be reasonably well settled by so many au- (Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875; thorities that we can have no hesitancy in Winner v. Linton, 120 Md. 276, 87 Atl. 674). accepting them as satisfactory and proper In Symington v. Sipes, supra, where we rules to follow if not already practically de- held, as a matter of law, that the owner of termined in this state. One is thus stated in an automobile was not liable for the negliHuddy on Automobiles, § 656, p. 849: gence of his chauffeur because the latter was not at the time of the collision acting within the scope of his employment, but was using the automobile contrary to orders to which he was then subject, and exclusively for his own individual purposes, we repeated the familiar rule announced by us in previous cases that "the master is liable for the negligent act of his servant only when it is committed within the scope of the service for which he is employed," and added:

"The mere fact that a son or daughter of the owner of an automobile was driving the machine at the time of an injury to another traveler, and that such child was guilty of negligence contributing to the injury, does not necessarily render the owner liable for the injury. It is a broad general rule in the law of torts that a parent is not liable for the wrongful acts of his children, whether they are minors or adults. In order to charge the parent with responsibility, he must be connected with the wrongful acts. Generally, it must be shown that he induced or approved the acts, or that the relation of master and servant existed between the parent and child."

The author cites many authorities in support of the text. Another is that, notwithstanding the above rule, "if the relationship of master and servant exists between them as to the driving of the machine on the occasion in question, the owner may be liable." Id. 851.

"There is nothing in the statutory law of the state relating to the use of motor vehicles that is inconsistent with the well-settled principle of the common law."

involve the question whether the owner was There are decisions by this court which liable inasmuch as the chauffeur was said to have been acting for his own purposes, and not for the business of his employer. In some of them, where the evidence was clear, There are also many decisions to the effect we sustained the lower courts in taking the cases from the jury (Symington v. Sipes, that, when an automobile is purchased for the pleasure of the owner's family, the own- Atl. 505), while in others it was for the jury supra; State v. Benson, 129 Md. 693, 100 er's liability is not necessarily dependent up-to determine the facts which were in doubt, on his being in it when an injury is sustainas may be illustrated by Stewart Taxi-Serv

ber of his family who was driving the car

that

ed by another person owing to the negligentice Co. v. Roy, 127 Md. 70, 95 Atl. 1057. operation of the car, but he may be liable In the note to White Oak Coal Co. v. for the negligence of his child or other mem- Rivoux, 88 Ohio St. 18, 102 N. E. 302, 46 for the convenience or pleasure of other L. R. A. (N. S.) 1091, as reported in Ann. members of the family. That seems to be Cas. 1914C, 1082, there are a great many on the theory that the relation of master cases cited to support the general statement and servant exists between them, and that the child is engaged in the master's business. Whether the child or other member of the family is acting within the scope of the owner's business when he is running the car for his own purposes has resulted in decidedly conflicting opinions, as will be seen by cases cited in the notes on pages 857-859 of Huddy on Automobiles.

"In order to render the owner of an automobile liable for the negligent act of the driver thereof, the latter must be the agent or servant of the owner and acting within the scope of his employment at the time the act is committed."

In the notes to Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954,

"Though the opinion has been expressed that the owner of a motor vehicle who permits his chauffeur to use the machine upon the personal business of the latter may be liable for the negligence of such chauffeur, the overwhelm-chauffeur's negligence had caused the injury. weight of authority supports the view that the owner is not liable under such circumstances." of liability of an owner when the purchase

of the automobile was for the pleasure or use A great many authorities are cited in the of the owner's family, as the record does not note, and, after a further examination of show that this car was so purchased, and them, we are satisfied that giving the chauf- the cases of Myers v. Shipley, 116 Atl. 645, feur permission to use a car for his own pur-and Baitary v. Smith, 116 Atl. 651, on the poses does not make the owner liable for injuries occurring while so used. The notes in the annotated cases referred to then discuss the subject when the driver is a child of the owner and cites many cases on both sides of the question of the liability of the owner for injuries caused by the negligence of the child. See, also, Huddy on Automobiles, § 660, beginning on page 856.

(116 Á.)

the prayers ignore the evidence of the defendant and his witnesses that the son was running the car wholly for his own purposes. Outside of the evidence of Col. Woodcock as to the statement of the son in the presence of his father, there was no evidence offered by plaintiff on that subject, but the question of fact as raised by that conflict was for the jury to determine.

[3, 4] As there was a conflict in the evidence just spoken of, the defendant's first prayer, which sought to take the case away from the jury, was properly rejected. For the same reason, there was no error in rejecting the defendant's second prayer. The defendant's third prayer was as follows:

"The jury is instructed at the instance of the defendant that, if they find from the evidence that Dryden Whitelock was using the automobile of the defendant, William A. Whitelock, at the time of the happening of the accident complained of solely for his own business or pleasure, with or without the knowledge or consent of his father, the said William A. Whitelock, then their verdict must be for the defendant."

or servant of the owner of the team, unless it be shown by the owner of the team that the contrary is the fact."

But it is a presumption that can be rebutted, and in Symington v. Sipes, supra, and State v. Benson, supra, this court held as matter of law that under the evidence in those cases the drivers at the time of the accidents were not acting within the scope of their employment, and hence affirmed prayers which instructed verdicts for the defendants, but in the Roy Case, supra, and others that might be cited, facts were presented which were required to be submitted to the jury.

The fourth prayer seems to present the facts alleged in the declaration and should have been granted, and the fifth should also have been granted. For errors in granting the plaintiff's first and second prayers, and in rejecting the defendant's third, fourth, and fifth prayers, and fifth prayers, the judgment must be reversed.

Judgment reversed, and new trial awarded; the appellee to pay the costs above and below.

(No. 351.)

9, 1922.)

(96 Vt. 13)

1. Appeal and error 1078(4)-Exception not briefed is not considered.

2. Schools and school districts

8-Evidence

held to warrant submission of fraudulent misrepresentations inducing contract to pay tui

tion.

In our opinion that was a good prayer under the circumstances of this case. The question of the purposes for which the son was using the car was submitted to the jury. We are not willing to commit ourselves to the MOUNT IDA SCHOOL, Inc., v. GILMAN et al. doctrine that an owner of an automobile is responsible for injuries sustained by a third (Supreme Court of Vermont. Caledonia. Feb. party by reason of the negligence of a minor son in running the car, if the car was at the time being used by the son for his own purposes, and not for those of his father, An exception taken by the plaintiff to a dieven if he had the permission, express or im-rected verdict in favor of two of the three deplied, of his father so to use the car. Of fendants which was not briefed will not be concourse, if the use of the car by the minor sidered. son granted by the father was of such a character or for such purpose as necessarily or probably to involve unusual dangers to other persons, another question might arise, but under the circumstances of this case we have no hesitation in holding that the father is not liable provided the jury finds that the son was using the car solely for his own purposes, and not in any way for his father. Generally speaking, when there is a conflict of fact, the case should be submitted to the jury under proper instructions of the court. It was said in Stewart Taxi Service Co. v. Roy, supra, that the facts that the car was owned by the defendant and a man named Ennis was operating it "made out a prima facie case in support of the allegation that the machine was operated by the defendant's agent or servant," and Judge Burke quoted at some length from Judge McSherry's opinion in Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 Atl. 833, where, amongst other things, it was said:

"It is a reasonable presumption that a person driving the team of another is the agent

In an action by an incorporated school for breach of contract to pay tuition, evidence that the room, board, instruction, and care furnished were not in accordance with the promises in the catalogue held sufficient to take to the jury by the school in inducing the contract, though the question of fraudulent misrepresentations the evidence was so slight as barely to amount to more than a scintilla.

3. Appeal and error 1060 (3)-Improper argument not supported by evidence held to require a reversal.

In an action by an incorporated school for breach of a contract for tuition, a statement in the argument of defendant's counsel referring to the transaction as "a money grab, a shell in the box scheme," which was not warranted by the evidence, was extremely prejudicial, and requires reversal of the verdict for defendant where court allowed an exception to the argument without warning the jury to disregard the argument, since such action was in effect a ruling that argument was proper.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Exceptions from Caledonia County Court; | in the notice was also received under exFrank L. Fish, Judge. ception.

Action on contract by the Mount Ida School, Inc., against Daniel T. Gilman and others. Verdict and judgment for defendants, and plaintiff excepts. Judgment reversed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, and MILES, JJ., and MOULTON, Superior Judge.

Shields & Conant, of St. Johnsbury, for plaintiff.

Porter, Witters & Longmore, of St. Johnsbury, for defendants.

MOULTON, Superior Judge. This is an action in contract brought to recover the balance claimed to be due for the tuition and board of the defendant Alene Gilman, at the plaintiff school under a written contract providing for a year's tuition, board, and incidentals for the inclusive sum of $600.

It is not necessary to determine the vathe case must be disposed of upon a differAs will appear, lidity of these exceptions. ent ground, and the questions raised here are not likely to arise again. It is true that the case of Dernier v. Rutland, etc., Power Co., 94 Vt. 187, 110 Atl. 4, is authority to the effect that, under the Practice Act as it was at the time of that decision, two or more defenses, inconsistent in point of fact, could not be pleaded, and that there was no longer such a thing as the general issue with notice. But since this decision was handed down the Practice Act has been amended by the enactment of No. 72, Acts 1921, by section 1 of which inconsistent defenses may be pleaded. How far that act operates to abrogate the holding in the Dernier Case with respect to the general issue with notice need not now be considered, for, if there is any defect in the form of the plea as filed, this may be remedied by an appropriate amendment.

[1] The declaration was in the common counts, and the case went to trial upon the What has been said applies equally, of general issue. At the close of the plaintiff's course, to the questions of the allowance of case the court directed a verdict in favor the amendment and of the admissibility of of the defendants Daniel T. Gilman and the evidence offered and received thereunAlene Gilman, and the case proceeded der. against the defendant Nellie H. Gilman. The defendants Daniel T. and Nellie H. Gilman were respectively, the father and mother of the defendant, Alene Gilman. An exception was taken by the plaintiff to the granting of the motion, but, since it is not briefed, no consideration is given to it. Ord v. Terry, 91 Vt. 148, 99 Atl. 778; Vermont

Marble Co. v. Eastman, 91 Vt. 425, 101 Atl.

151.

But

Upon the filing of the amended plea the plaintiff moved for a continuance, claiming that it was taken at a disadvantage because no preparation had been made to meet the issue of misrepresentations, which had not before been tendered, and because the witnesses necessary to be summoned upon this point were in Massachusetts and beyond the reach of process. The motion was overruled During the course of the trial the defend- and the plaintiff given an exception. ant offered evidence tending to show that this exception also need not be considered, the accommodations and board at the plain- for it presents a question unlikely to appear tiff school were not as they were represented in a subsequent trial, and, as has been said, to be in the catalogue which had been fur- the case must be otherwise disposed of. nished to defendant prior to the making of the contract and claimed that in this there was misrepresentation on behalf of the plaintiff, by which the defendant had been induced to enter into the contract for the tuition and board of Alene. Objection being made by the plaintiff upon the ground that this evidence was not admissible under the general issue, the court permitted the defendant to file further pleadings, and thereupon there was filed the general issue with notice of special matter in defense, in effect that the contract was induced by misrepresentations on behalf of the plaintiff concerning the ac- in Spanish, as to the board furnished to the commodations, board, and privileges accorded pupils, as to the rooms occupied by them, and by the school to prospective scholars. An as to attention given to Miss Gilman. exception was taken by the plaintiff to the statements in the catalogue, so far as mateallowance of this amendment, and the evi- rial to these subjects, were as follows: dence introduced thereafter by the defend- In the course of elective studies for the

At the close of all the evidence the plaintiff seasonably moved for a directed verdict, on the grounds that the contract was in writing, that there had been no breach thereof on the part of the plaintiff, that it had been ready, able, and willing to fulfill its part and carry it out, and that it was entitled to recover the amount specified in the written contract. The motion was overruled, and the plaintiff excepted.

The court submitted to the jury certain only of the claimed defaults on the part of the plaintiff. These were as to the course

The