family purpose doctrine in Nebraska

1951The family purpose doctrine was first stated by us in *717 Stevens v. Luther, 105 Neb. 184 , 180 N. W. 87 , as follows: “* * * the owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept.” See, also, Linch v. Dobson, 108 Neb. 632 , 188 N. W. 227 ; Thoren v. Myers, 151 Neb. 453 , 37 N. W. 2d 725 .

1951The family purpose doctrine was first stated by us in *717 Stevens v. Luther, 105 Neb. 184 , 180 N. W. 87 , as follows: “* * * the owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept.” See, also, Linch v. Dobson, 108 Neb. 632 , 188 N. W. 227 ; Thoren v. Myers, 151 Neb. 453 , 37 N. W. 2d 725 .

1947In Hogg v. MacDonald, 128 Neb. 6 , 257 N. W. 274 , we adopted and followed the following rules for determining the existence of the family relation under the family purpose doctrine: “ T.

1947In Hogg v. MacDonald, 128 Neb. 6 , 257 N. W. 274 , we adopted and followed the following rules for determining the existence of the family relation under the family purpose doctrine: “ T.

1990Agreeing this purpose is not served when the owner sues for damages, this court reiterated the rule in Paprocki v. Stopak, supra at 525 , 330 N.W.2d at 476-77 , that “the negligence of the family-purpose driver is not ordinarily imputed to the family-purpose owner in an action by the owner against a third party for the owner’s own injuries or property damage.” (Citing Bartek v. Glasers Provisions Co., Inc., supra.) The Paprocki court went on to discuss the exception to *586 this rule.

1989Id. at 802 , 71 N.W.2d at 473 .

1989Id. at 802 , 71 N.W.2d at 473 .

1976See, Jacobsen v. Daley, 228 Minn. 201 , 36 N. W. 2d 711 (1949); McMartin v. Saemisch, 254 Iowa 45 , 116 N. W. 2d 491 (1962).

1976See, Jacobsen v. Daley, 228 Minn. 201 , 36 N. W. 2d 711 (1949); McMartin v. Saemisch, 254 Iowa 45 , 116 N. W. 2d 491 (1962).

1976In Doleman v. Burandt, 160 Neb. 745 , 71 N. W. 2d 521 (1955), the court held that: “When an automobile is owned jointly and one of the two co-owners entrusts its use to the other, any negligence of the owner driving the automobile is imputed to the other owner in an action brought by the owners as plaintiffs *530 against the third party for property damage to the jointly owned automobile.” The court stated however: “We adopt this rule only in the above situation where the action is brought by the co-owners as plaintiffs against a third party.

1976In Doleman v. Burandt, 160 Neb. 745 , 71 N. W. 2d 521 (1955), the court held that: “When an automobile is owned jointly and one of the two co-owners entrusts its use to the other, any negligence of the owner driving the automobile is imputed to the other owner in an action brought by the owners as plaintiffs *530 against the third party for property damage to the jointly owned automobile.” The court stated however: “We adopt this rule only in the above situation where the action is brought by the co-owners as plaintiffs against a third party.

1976Stevens v. Luther, 105 Neb. 184 , 180 N. W. 87 (1920); Kohler v. Ford Motor Co., 187 Neb. 428 , 191 N. W. 2d 601 (1971); Butera v. J.

1976Stevens v. Luther, 105 Neb. 184 , 180 N. W. 87 (1920); Kohler v. Ford Motor Co., 187 Neb. 428 , 191 N. W. 2d 601 (1971); Butera v. J.

1976On the other hand, in Rushing v. Polk, 258 N. C. 256 , 128 S. E. 2d 675 (1962), the Supreme Court of North Carolina refused to apply the family purpose doctrine to husband and wife joint owners of an automobile without the proof of actual agency between them, stating that: “Where husband and wife are joint owners of a motor vehicle and are members of the same household, the family purpose doctrine, nothing else appearing, does not apply as between them.” (Emphasis supplied.) Dictum in an earlier Nebraska case has been cited as indicating an intention not to apply the family purpose doctrine in

1976On the other hand, in Rushing v. Polk, 258 N. C. 256 , 128 S. E. 2d 675 (1962), the Supreme Court of North Carolina refused to apply the family purpose doctrine to husband and wife joint owners of an automobile without the proof of actual agency between them, stating that: “Where husband and wife are joint owners of a motor vehicle and are members of the same household, the family purpose doctrine, nothing else appearing, does not apply as between them.” (Emphasis supplied.) Dictum in an earlier Nebraska case has been cited as indicating an intention not to apply the family purpose doctrine in

1961In the absence of such proof, negligence cannot be presumed.’ ” See, also, Peake v. Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 ; Bailey v. Spindler, 161 Neb. 563 , 74 N. W. 2d 344 . *351 In Schrage v. Miller, 123 Neb. 266 , 242 N. W. 649 , this court said: “Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.” The only witness presented by the defendants was Aaron Harris, who was not a witness to the accident, and whose testimony related to the family-purpose doctrine.

1961In the absence of such proof, negligence cannot be presumed.’ ” See, also, Peake v. Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 ; Bailey v. Spindler, 161 Neb. 563 , 74 N. W. 2d 344 . *351 In Schrage v. Miller, 123 Neb. 266 , 242 N. W. 649 , this court said: “Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.” The only witness presented by the defendants was Aaron Harris, who was not a witness to the accident, and whose testimony related to the family-purpose doctrine.

1961The defendants contend that the pickup truck driven by James Harris at the time of the accident was not a family-purpose car, citing Piechota v. Rapp, 148 Neb. 442 , 27 N. W. 2d 682 , wherein it is said: “We have followed the family purpose doctrine.

1961The defendants contend that the pickup truck driven by James Harris at the time of the accident was not a family-purpose car, citing Piechota v. Rapp, 148 Neb. 442 , 27 N. W. 2d 682 , wherein it is said: “We have followed the family purpose doctrine.

1961In the absence of such proof, negligence cannot be presumed.’ ” See, also, Peake v. Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 ; Bailey v. Spindler, 161 Neb. 563 , 74 N. W. 2d 344 . *351 In Schrage v. Miller, 123 Neb. 266 , 242 N. W. 649 , this court said: “Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.” The only witness presented by the defendants was Aaron Harris, who was not a witness to the accident, and whose testimony related to the family-purpose doctrine.

1961In the absence of such proof, negligence cannot be presumed.’ ” See, also, Peake v. Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 ; Bailey v. Spindler, 161 Neb. 563 , 74 N. W. 2d 344 . *351 In Schrage v. Miller, 123 Neb. 266 , 242 N. W. 649 , this court said: “Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.” The only witness presented by the defendants was Aaron Harris, who was not a witness to the accident, and whose testimony related to the family-purpose doctrine.

1961In Linch v. Dobson, 108 Neb. 632 , 188 N. W. 227 , we held: ‘Where the head of a family has purchased or maintains, a car for the pleasure of his family, he is, under the so-called *349 “family purpose” doctrine, held liable for injuries inflicted in the negligent operation of the car while it is being used by members of the family for their own pleasure, on the theory that it is being used for the purpose for which it is kept, and that in operating it the member of the family is acting as the agent or servant of the owner.’ ” In Wieck v. Blessin, 165 Neb. 282 , 85 N. W. 2d 628 , this court he

1961In Linch v. Dobson, 108 Neb. 632 , 188 N. W. 227 , we held: ‘Where the head of a family has purchased or maintains, a car for the pleasure of his family, he is, under the so-called *349 “family purpose” doctrine, held liable for injuries inflicted in the negligent operation of the car while it is being used by members of the family for their own pleasure, on the theory that it is being used for the purpose for which it is kept, and that in operating it the member of the family is acting as the agent or servant of the owner.’ ” In Wieck v. Blessin, 165 Neb. 282 , 85 N. W. 2d 628 , this court he

1961In the absence of such proof, negligence cannot be presumed.’ ” See, also, Peake v. Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 ; Bailey v. Spindler, 161 Neb. 563 , 74 N. W. 2d 344 . *351 In Schrage v. Miller, 123 Neb. 266 , 242 N. W. 649 , this court said: “Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.” The only witness presented by the defendants was Aaron Harris, who was not a witness to the accident, and whose testimony related to the family-purpose doctrine.

1961In the absence of such proof, negligence cannot be presumed.’ ” See, also, Peake v. Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 ; Bailey v. Spindler, 161 Neb. 563 , 74 N. W. 2d 344 . *351 In Schrage v. Miller, 123 Neb. 266 , 242 N. W. 649 , this court said: “Contributory negligence is an affirmative defense, the burden of proving which is on the party pleading it.” The only witness presented by the defendants was Aaron Harris, who was not a witness to the accident, and whose testimony related to the family-purpose doctrine.

1955While other states have held to the contrary we have held that the negligence of a husband, while driving an automobile in which the wife is riding as a guest, may not, merely because of that relationship, be imputed to her (see, Stevens v. Luther, supra; Crandall v. Ladd, supra; Remmenga v. Selk, 150 Neb. 401 , 34 N. W. 2d 757 ; Hendrix v. Vana, 153 Neb. 531 , 45 N. W. 2d 429 ); that the owner of an automobile may be a guest in his own car (see, Petersen v. Schneider, supra; Davis v. Spindler, supra); and that the mere fact of ownership is not sufficient to impose that liability (see Petersen

1955While other states have held to the contrary we have held that the negligence of a husband, while driving an automobile in which the wife is riding as a guest, may not, merely because of that relationship, be imputed to her (see, Stevens v. Luther, supra; Crandall v. Ladd, supra; Remmenga v. Selk, 150 Neb. 401 , 34 N. W. 2d 757 ; Hendrix v. Vana, 153 Neb. 531 , 45 N. W. 2d 429 ); that the owner of an automobile may be a guest in his own car (see, Petersen v. Schneider, supra; Davis v. Spindler, supra); and that the mere fact of ownership is not sufficient to impose that liability (see Petersen

1955While other states have held to the contrary we have held that the negligence of a husband, while driving an automobile in which the wife is riding as a guest, may not, merely because of that relationship, be imputed to her (see, Stevens v. Luther, supra; Crandall v. Ladd, supra; Remmenga v. Selk, 150 Neb. 401 , 34 N. W. 2d 757 ; Hendrix v. Vana, 153 Neb. 531 , 45 N. W. 2d 429 ); that the owner of an automobile may be a guest in his own car (see, Petersen v. Schneider, supra; Davis v. Spindler, supra); and that the mere fact of ownership is not sufficient to impose that liability (see Petersen

1955While other states have held to the contrary we have held that the negligence of a husband, while driving an automobile in which the wife is riding as a guest, may not, merely because of that relationship, be imputed to her (see, Stevens v. Luther, supra; Crandall v. Ladd, supra; Remmenga v. Selk, 150 Neb. 401 , 34 N. W. 2d 757 ; Hendrix v. Vana, 153 Neb. 531 , 45 N. W. 2d 429 ); that the owner of an automobile may be a guest in his own car (see, Petersen v. Schneider, supra; Davis v. Spindler, supra); and that the mere fact of ownership is not sufficient to impose that liability (see Petersen

1955“The family purpose doctrine is not a restatement of the rules of principal and agent or master and servant, but rather is a development from those principles.” Jennings v. Campbell, supra. “The rule is based upon public policy and is in the nature of an exception to the rule that a master or principal is not liable for the negligent conduct of his servant or agent, unless in driving he is pursuing an employment or agency for the owner.” Jennings v. Campbell, supra. “Where a family purpose car is being used by a mem» ber of the family and an accident follows from the use, the rule does not mak

1955“The family purpose doctrine is not a restatement of the rules of principal and agent or master and servant, but rather is a development from those principles.” Jennings v. Campbell, supra. “The rule is based upon public policy and is in the nature of an exception to the rule that a master or principal is not liable for the negligent conduct of his servant or agent, unless in driving he is pursuing an employment or agency for the owner.” Jennings v. Campbell, supra. “Where a family purpose car is being used by a mem» ber of the family and an accident follows from the use, the rule does not mak

1951The family purpose doctrine was first stated by us in *717 Stevens v. Luther, 105 Neb. 184 , 180 N. W. 87 , as follows: “* * * the owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept.” See, also, Linch v. Dobson, 108 Neb. 632 , 188 N. W. 227 ; Thoren v. Myers, 151 Neb. 453 , 37 N. W. 2d 725 .

1951The family purpose doctrine was first stated by us in *717 Stevens v. Luther, 105 Neb. 184 , 180 N. W. 87 , as follows: “* * * the owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept.” See, also, Linch v. Dobson, 108 Neb. 632 , 188 N. W. 227 ; Thoren v. Myers, 151 Neb. 453 , 37 N. W. 2d 725 .

1942In Galpin v. Fisher, 109 Neb. 700 , 192 N. W. 205 , the case was not submitted to the jury on the family purpose doctrine.

1942In Galpin v. Fisher, 109 Neb. 700 , 192 N. W. 205 , the case was not submitted to the jury on the family purpose doctrine.

1936In this case it is stipulated that the car was owned by defendant, and that the use of the car on the evening in question was with the consent and permission of defendant. ' Defendant cites and relies upon Hogg v. MacDonald, 128 Neb. 6 , 257 N. W. 274 , and Ebers v. Whitmore, 122 Neb. 653 , 241 N. W. 126 .

1936In this case it is stipulated that the car was owned by defendant, and that the use of the car on the evening in question was with the consent and permission of defendant. ' Defendant cites and relies upon Hogg v. MacDonald, 128 Neb. 6 , 257 N. W. 274 , and Ebers v. Whitmore, 122 Neb. 653 , 241 N. W. 126 .

1934Rogers v. Kuhnreich, 247 Mich. 204 .