WESTERGREN et al.
Action by automobile owners for damages sustained in collision involving their automobile which was being operated by owners' minor son who was under 18 years old and automobile of defendant. Owners filed motion to strike defendant's defense predicated on statute relative to liability of owner for negligence of minor. The Superior Court, Sussex County, Terry, J., held that under statute providing that owner of motor vehicle who permits minor under age of 18 years to drive vehicle upon highway shall be jointly and severally liable with minor for damages caused by negligence of such minor, alleged contributory negligence of minor who drove automobile with permission of parents-owners would not be imputed to owners so as to preclude owners' recovery against allegedly negligent third party.
Under statute providing that owner of motor vehicle who permits minor under age of 18 years to drive vehicle upon highway shall be jointly and severally liable with minor for damages caused by negligence of such minor, alleged contributory negligence of minor who drove automobile with permission of parents-owners and who was involved in accident would not be imputed to owners so as to preclude owners' recovery against allegedly negligent third party. 21 Del.C. § 6106.
[48 Del. 159] Motion by plaintiffs to strike defendant's third defense under the provisions of Section 72, Chapter 10, Volume 36, Laws of Delaware, 1929.
The question presented is whether the contributory negligence of an operator of an automobile (under the provisions of Section 72, Chapter 10, Volume 36, Laws of Delaware, 1929) is imputed to its owner in a case where the owner sues a negligent third person for damages to his automobile resulting from a collision.
‘ Sec. 72. Liability of owner for negligence of minor. Every owner of a motor vehicle who causes or knowingly permits a minor under the age of 18 years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.’
In the present case the plaintiffs, who are husband and wife, and the owners of a Ford Coupe, permitted their son, [48 Del. 160] John G. Westergren, who at the time was under the age of 18 years, to operate their automobile upon Highway 38 in Sussex County of this State.
The plaintiffs allege that their Ford Coupe was being operated in a northerly direction by their son on Highway 38 on January 7, 1953, and at the time and place Howard King, Jr., the defendant, was operating a 1952 Mercury Sedan in a southerly direction over and along said highway; that the defendant in operating the Mercury Sedan negligently drove the same over and into the lane of travel reserved for traffic proceeding in a northerly direction, and thereby caused a collision between the automobile he was operating and the plaintiffs' automobile being operated by their son, aforesaid. The complaint concludes with allegations charging the defendant with certain other specific acts of negligence, together with a demand for judgment in the amount of $1200.
The defendant's answer contains three separate defenses. The first two are not involved in the present controversy. Under the third defense it is alleged that the plaintiffs' son, a minor under the age of 18 years, was operating the plaintiffs' Ford Coupe at the time of the collision with the plaintiffs' permission and consent, and for purposes of his own, and that in operating, as aforesaid, he was guilty of negligence which proximately contributed to the collision, and that such negligence is imputed to the plaintiffs under the provisions of Section 72, aforesaid.
The plaintiffs have moved to strike the third defense on the ground ‘ that it is an insufficient defense and more particularly on the ground that it is an attempt to impute the alleged contributory negligence of the minor to the owners (plaintiffs) on the basis of the provisions of Section 72.’
The plaintiffs contend that the Legislature in enacting Section 72 did not change the common law rule respecting the owner's right to recover from third persons under circumstances as disclosed in the present case, nor may the statute be invoked for the purpose of imputing the minor's negligence to the owner. [48 Del. 161] Citing Webber v. Graves, 234 A.D. 579, 255 N.Y.S. 726; Mills v. Gabriel, 259 A.D. 60, 18 N.Y.S.2d 78,affirmed, 284 N.Y. 755, 31 N.E.2d 512; Restatement of Torts, Sec. 485(b); Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429.
For the purpose of the motion the plaintiffs concede (1) that they are the owners
of the Ford Coupe involved in the alleged collision; (2) that they permitted their son, John G. Westergren (under the age of 18 years), to operate the said Ford Coupe for purposes of his own; and (3) that at the time of the collision as alleged their son was operating upon Highway 38 aforesaid in a ...