ments out of the sequestered funds before service or judgment. This order, therefore, was properly vacated and annulled by the Appellate Division. For the reasons here stated the order appealed from must be affirmed, with costs, and the questions certified answered as follows: First question is answered in the negative so far as applicable to this case. HISCOCK, C. J., and CARDOZO, POUND, McLAUGHLIN, and ANDREWS, JJ., con cur. LEHMAN, J., concurs in result in memorandum. Order affirmed. LEHMAN, J. I concur in the affirmance of the judgment of the Appellate Division, Second question is answered in the affirma- but I do not in the construction placed by tive. this court upon the statute. (316 [11. 313) (147 N.E.) Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Francis S. Wilson, Judge. Action by Phillip Gates against George Mader. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari. Affirmed. Cooke, Sullivan & Ricks, Bowles & Bowles, and Orville D. Stuart, all of Chicago (Oliver R. Barrett, of Chicago, of counsel), for plaintiff in error. John A. Bloomingston, of Chicago, for defendant in error. FARMER, J. This case comes to this court for review by the allowance of a petition for writ of certiorari. The parties will be referred to as plaintiff and defendant, as they were in the trial court. pleasure of his family in driving about in the parks and other places. Defendant's wife could not drive the car, but she had the permission and the privilege, when defendant could not drive for the family, of taking the car out for pleasure and getting some one else to drive it. Defendant's son, who was driving the car at the time of the accident, was 24 years old, was employed at and lived in the South Shore Hospital, and visited his parents about once a week. Defendant testified he never objected to his son driving the car or to taking the family out in it for pleasure. He testified he did not know of the particular drive when the accident occurred until after it was over. The son, who was driving the car, was named Ervin Mader. In the car with him at the time of the accident were his mother, two sisters, a niece of Mrs. Mader, and a lady friend and her daughter. The women had, some time before the day of the accident, made a luncheon engagement at the home of Mrs. Kaiser, a lady friend some distance away. They expected to be at Mrs. Kaiser's home about 1 o'clock and planned to go by street railway. The night before the accident defendant's wife called up a member of the party and said they would go in an automobile. Ervin, the son, had returned home the evening before the accident, and agreed to drive the family in the car to the luncheon. While on their way the accident happened. Defendant contends this case is controlled by the decision in Arkin v. Page, 287 Ill. 420, 123 N. E. 30, 5 A. L. R. 216, and plaintiff contends it is controlled by Graham v. Page, 300 Ill. 40, 132 N. E. 817. In the Ark in Case the son was not using the car for pleasure or for any family purpose. He was driving alone to a school (Lewis Institute) to see if he could register as a student in the summer school. His father knew nothing about his intention to attend the school, and knew nothing about his taking the car from the garage to drive to the institution. The son had never talked to the father about going to the school, and intended to pay his own tuition out of money he had in the bank. The father knew the son was in the habit or driving the car, and did not object. In the Graham Case a 16 year old daughter of the owner of the car was driving it at the time of the accident, and no member of her family was with her. The daughter was driving to a cobbler's to get a pair of shoes which had been left to be repaired. The court No question is involved as to the negligent held she was engaged in performing the duoperation of the automobile or the due care ty and business of her father, and the relaand caution of the plaintiff. Defendant re- tion of agency existed. It was decided in lies on his special pleas as a complete de- the Arkin Case that the mere relationship fense. He is an osteopathic physician and of parent and child did not create the relaowns an automobile, which is used by him tion of servant or agent, but that, even if it in making professional calls and for the did create such relationship, the principle Phillip Gates, plaintiff, sued George Mader, defendant, for a personal injury he sustained by being struck by defendant's automobile while driven by his son. The declaration alleged the negligent operation and control of the automobile and due care and caution of plaintiff. Defendant filed special pleas, alleging that at the time of the injury he did not drive, operate, or control the automobile personally or by his agent or servant. He did not deny being the owner of the automobile. Plaintiff recovered a judgment against defendant, which the Ap pellate Court affirmed, and this court granted defendant's petition for a writ of certiorari to review the judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 147 N.E.-16 would apply that an agent or servant's negligence, when not acting for his principal, but engaged in business of his own and pursuing his own interests exclusively, does not render the principal liable. The Arkin Case cites several decisions which support it, and refers to others holding the contrary. It is not denied that the weight of authority at the time the Arkin Case was decided did not support the decision, but it is contended that since that decision the weight of authority has shifted, and now supports it, and it is asserted that a majority of the states are aligned against what counsel call the "family purpose" doctrine. The authorities are in great conflict. Some states have held a father, the owner of the car, liable for his son's negligence when the son is the only member of the family occupying the car. Many states hold the father liable when other members of the family are in the car, some cases hold liability exists only when other members of the family are in the car, and some that the father is not liable, regardless of the number of members of the family in the car. We shall not extend this opinion by citing and commenting on the conflicting cases. The states of Nebraska, Washington, North Carolina, Oklahoma, Georgia, New Mexico, Kentucky, Iowa, and Minnesota are cited in defendant's brief as holding the father liable whether the car is being used by one or more members of the family, and New York as having decided both ways. Counsel says the decisions are based on the family purpose doctrine, and that this court has repudiated that doctrine. To support that statement counsel cites a sentence from the dissenting opinion in the Arkin Case that there is no difference concerning liability, whether one or more members of the family are in the car, and a sentence from the opinion in the Graham Case. In commenting on the decisions of the New Jersey court in Doran v. Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677, where a daughter was driving the car and was the only member of the family in it, and it was held there was no liability, and Missell v. Hayes, 86 N. J. Law, 348, 91 A. 322, where there were several other members of the family in the car, which was driven by a son, and it was held the father was liable, this court said in the Graham Case that did not appear to be a valid basis for the distinction, but rather seemed to indicate the court was not inclined to approve its former decision. We said in that case that the weight of authority supported the liability of the owner of a car kept for family use and pleasure, when an injury was negligently caused by it while driven by one of his children. [1] The question involved in this case is whether, under the evidence, defendant is liable. At the time of the injury the car was being driven by defendant's son for the pleasure and convenience of the family. It is settled by the judgment of the Appellate Court that the son was driving it with the permission of defendant, and that the car was being used for one of the purposes it was kept for. If defendant had himself been driving, it could not be denied he would have been liable for negligent injury, and the decided weight of authority, we think, makes him liable, under the evidence in this case, for the negligence of the son. Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; Boes v. Howell, 24 N. M. 142, 173 P. 966, L. R. A. 1918F, 288; Denison v. McNorton, 228 F. 402, 142 C. C. A. 631; McNeal v. McKain, 33 Okl. 449, 126 P. 742, 41 L. R. A. (N. S.) 775; Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224; Stevens v. Luther, 105 Neb. 184, 180 N. W. 87; Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627; Jaeger v. Salentine, 171 Wis. 632, 177 N. W. 886; Uphoff v. McCormick, 139 Minn. 392, 166 N. W. 788; Crawford v. McElhinney, 171 Iowa, 606, 154 N. W. 310, Ann. Cas. 1917E, 221; King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59. In our opinion liability in this case is based on reason and justice. Defendant denied he knew that the car was going to be used on the particular occasion, but admits its use was authorized by him. This case is not controlled by the Arkin Case. We do not think the question of defendant's liability is affected by the fact that his son was of adult age and worked and lived in a hospital. In some of the cases where liability was sustained, the son or daughter who was driving the car was a minor; but we do not recall that any case made a distinction on account of age, under facts similar to those involved in this case. [2] It is also insisted the court committed reversible error in permitting Dr. Denison to relate a telephone conversation he said he had with defendant. The objection relates more to the weight and credibility of the testimony than to its competency. The mere fact that the conversation was over a telephone does not render it inadmissible. There was no substantial error committed by the court in giving and refusing instructions. The judgment of the Appellate Court is affirmed. Judgment affirmed. DUNN, THOMPSON, and DE YOUNG, JJ., dissent. (147 N.E.) (316 III. 336) PEOPLE v. GILMORE. (Supreme Court of Illinois. Feb. 17, 1925. 1. Contempt ~66 (6)—Facts constituting contempt set out in judge's order considered as true. On review of conviction for direct contempt, order of judge setting out facts constituting the contempt must be considered as true. 2. Contempt 2-Guilt of direct contempt determined by act rather than intent. Act of offender and not alleged intent determines whether a direct contempt has been committed. 3. Equity 114-One cannot intervene in suit without leave of court in which suit is pending. One having interest in suit, giving her right to intervene, cannot do so except by leave of court before whom case is pending. 4. Receivers 78 Claims to property in hands of receiver only enforceable by being made party to suit. Possession of receiver being possession of court appointing him, claimants of property in hands of receiver may only enforce their claims by being made parties to suit by leave of court on motion or petition. 5. Contempt 18- Filing petition without leave to recover property under control of court direct contempt. Filing petition, without leave, to recover property in custody of law and under control of court, which petitioner claimed as her private property unlawfully taken by court, was on part of petitioner and her attorney a direct contempt. 6. Receivers 174(1)-Suit to enforce claim of title to property in hands of receiver must be by leave of court. signed by client, but prepared and presented by counsel, latter was as guilty as former. Error to Second Branch Appellate Court, First District, on Error to Circuit Court, Cook County; Kickham Scanlan, Judge. Suit by A. Kneisel and others against the Ursus Motor Company. To review a judgment adjudging Leslie A. Gilmore guilty of a direct contempt of court, affirmed on writ of error in the Appellate Court, he brings error. Judgment affirmed. Arthur M. Fitzgerald, of Springfield, for plaintiff in error. Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, Albert D. Rodenberg, Edward C. Fitch, and Virgil L. Blanding, all of Springfield (Angus Roy Shannon and Edward E. Wilson, both of Chicago, of counsel), for the People. Plaintiff in error is a lawyer, and the order of Judge Scanlan was entered in Kneisel v. Ursus Motor Company, which was one of more than 200 suits in which Jacob Goldman had originally been appointed receiver, but was later removed and the Chicago Title & Trust Company appointed receiver in his stead. The more than 200 receivership suits were pending before different judges, and because of Goldman's insolvency and his ir regularities in connection with the assets Provision of Laws 1913, p. 254, that reof the estates, and because it was believed ceiver may be sued in respect of any act or necessary to the discovery and recovery of transaction of his in carrying on business con- the assets of the estates, it was deemed that nected with property in his possession without Judge Scanlan, who had charge of some of leave of court, does not authorize suit or in- the cases, in the course of which he had tervention without leave of court by one claim-recovered a large amount of assets, should ing title to property in possession of receiver. 7. Receivers 174(2) — Filing petition addressed to all of judges of court to recover property under control of court without leave held direct contempt. Counsel in filing petition without leave of court, setting up title to certain property, which was in hands of receiver as trust fund to be administered by court, addressed to all the judges of circuit court, asking that matter be taken from hands of judge for bias, prejudice, and animosity, was in direct contempt of court. have charge of all the cases. Pursuant to the rule of the court relating to assignment of cases, all the receivership cases, 298 in all, were assigned and transferred to Judge Scanlan. As above stated, Goldman was removed as receiver and the Chicago Title Trust Company appointed to succeed him. Much time was consumed and many hearings had before Judge Scanlan in discovering assets received by Goldman and separating them among the respective estates entitled to them. Plaintiff in error 8. Contempt 29-Attorney in preparing and represented Goldman in several of the cases, presenting petition guilty of contempt. atterded and took part in the hearings beWhere petition, filing of which without fore Judge Scanlan, and was familiar with leave of court was a direct contempt, was the whole situation. It appears that Ida For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Goldman, wife of Jacob Goldman, became | the jewelry and turning it over to the Chiinvolved with her husband in some of the transactions, and she was indicted by the grand jury for receiving stolen property. Goldman was indicted for embezzlement and larceny of property of receivership estates. On the 26th day of October, 1923, plaintiff in error filed the petition of Ida Goldman with the clerk of the court without having previously asked leave. Ida Goldman was not a party in the receivership matter of Kneisel v. Ursus Motor Company, which was the case in which the petition was filed. The petition alleged that Ida Goldman was the owner of jewelry described, $1,500 in money, and a lot of household furniture stored in a certain warehouse named; that petitioner's husband had, since 1915, made her a monthly allowance of $300 and from time to time given her other sums of money, which she kept in a savings bank account and used in purchasing the property she claimed; that in April, 1923, at the request of her son, Harold, she surrendered the jewelry to him, which her son informed her he delivered to Cameron Latter, who delivered it to Lloyd Whitman, who on the same day surrendered it in open court to Judge Scanlan while the case of Kneisel v. Ursus Motor Company was being considered by the court; that she was not advised the jewelry was to be turned over to the court and did not intend to divest herself of title to it; that she had demanded it to be returned to her, but her demand was refused; that she delivered to her son, Harold, $1,500 in money, with specific directions to disburse the same so as to procure the release of her husband from jail; that Judge Scanlan by threats took the money from the man to whom her son intrusted it and turned it over to the Chicago Title & Trust Company, successor to petitioner's husband as receiver in the cause referred to and other causes in which her husband had been receiver, and the money is now in the custody of the court; that the appropriation of the $1,500 by the court was without her knowledge and consent, had never been ratified, and she protests against the right and power of the court to keep the money, and demands that the same be returned to her; that Judge Scanlan, while presiding in the cause mentioned, entered an order of injunction or restraint against the David Fireproof Storage Warehouse, restraining it from delivering to petitioner a large amount of household and kitchen furniture, listed and described, which she alleges belonged to her; that Judge Scanlan had no right or power to issue the injunction or prevent her from possessing herself of her furniture, and that the injunction is void for want of jurisdiction over the person of petitioner and the subject-matter; that the conduct of Judge Scanlan in the matter of taking custody of cago Title & Trust Company, and taking the $1,500 in money, was wrongful, oppressive, and without authority of law, and was in excess of the power of said court, as was also the injunction restraining the storage company from delivering her property to her, and should be vacated and set aside; that Judge Scanlan, well knowing petitioner was the wife of Jacob Goldman, with whom she lived, and of her right to accept gifts of money, jewels, or household effects from her husband, and that her receipt and custody of the same would not subject her to the crime of receiving stolen property, appeared before the state's attorney and the grand jury of Cook county and caused the indictment of petitioner for the crime of receiving stolen property, and also caused the indictment of petitioner's husband for the crime of embezzlement and larceny; that Judge Scanlan knew at the time Goldman had not been adjudged to have or hold any money or property in any of the pending receivership causes which he had been ordered to pay over and deliver to any party entitled thereto; that Judge Scanlan had been specially designated by the executive committee of the court to hear and determine matters in controversy in Kneisel v. Ursus Motor Company, in which cause and other causes Goldman was appointed receiver, but said judge had manifested his bias, prejudice, and animosity against petitioner and her husband, and was not a fit and proper person to preside at the hearinterest of petitioner; that the court should ing of any matter concerning the right and safeguard her rights by directing a hearing of the petition by some judge of the court who would accord her a just, fair, and impartial hearing and determination of her rights. The petition prayed that it be referred to some impartial judge of the court for hearing and determination, and that the Chicago Title & Trust Company be required to answer the petition and show cause, if any it had, why petitioner should not have her property restored to her. The petition was addressed to the judges of the circuit court of Cook county. It was presented to the chief justice of the circuit court, who informed plaintiff in error the cause had been regularly assigned to Judge Scanlan and that he must appear before him with the petition. The petition was presented to Judge Scanlan the following day, October 27, which appears to have been the first time he had heard of it. The order of Judge Scanlan November 1, 1923, adjudging plaintiff in error guilty of contempt, is the entire record to be reviewed by this court. The order sets out the petition of Ida Goldman in full, the assignment of the receivership cases to Judge Scanlan, plaintiff in error's admitted knowledge that the cases had been so assigned, and |