Anderson v. Daniel

• Decision Date: 06 October 1924
• Docket Number: 24048
• Court: Mississippi Supreme Court
• Parties: ANDERSON v. DANIEL. [*]

101 So. 498

136 Miss. 456

ANDERSON v. DANIEL. ^[*]

No. 24048

Supreme Court of Mississippi

October 6, 1924

Suggestion of Error Overruled Nov. 3, 1924.

(En Banc.) Suggestion of Error Overruled Nov. 3, 1924.

1. PARENT AND CHILD. Rule stated as to parent's liability for permitting minor son, who is reckless driver, to operate car.

An automobile driven by a minor child of the owner with the latter's knowledge or permission, the child being a reckless driver, and by reason thereof injures another, and his incompetency is known to the parent, the latter is liable upon the ground of negligently permitting the child to operate the car.

2. PARENT AND CHILD. Question of father's knowledge of use of car by minor, and that he was reckless driver held for jury.

On the issue of fact of whether a minor child, who was a reckless driver of an automobile, was driving his father's car at the time of the injury complained of with the latter's knowledge or consent, evidence to the effect that the child was a member of the father's household, that he was in the habit of driving the car, and that he was a reckless driver and had the reputation as such in the neighborhood where his father lived, was sufficient to make it a question for the jury.

3. APPEAL AND ERROR. Judgment not reversed after verdict for defect in form of declaration, or insufficient statement of plaintiff's cause of action.

Under the statute of jeofails (section 808, Code of 1906; section 596, Hemingway's Code) no judgment will be reversed after verdict for any defect of form in the declaration, or because of any insufficient statement of plaintiff's cause of action.

SMITH C. J., and COOK, J., dissenting in part.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by A. J. Daniel against L. B. Anderson. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

D. W. Houston, Sr. and Jr., for appellant.

The uncontradicted evidence shows that the defendant's minor son, James Anderson, then about seventeen years of age, who had been attending school in Clay county, Mississippi, away from his home since September, 1921, came home to spend the Christmas holidays with his parents; that on December 30, 1921, the latter part of the holidays, and during his stay at home at said time, without the knowledge, consent, or permission of his father, the defendant, who was away from home at the time, or his mother; and not on the business of his father or mother, but for his own pleasure, recreation and convenience, went to the garage of his father, took therefrom his Ford automobile and, in the course of a drive, struck and injured plaintiff. This court has repeatedly held that to create a liability in such a case, (1) the relationship of master and servant must exist between the driver of the car and the owner; (2) the car must have been used at the time of the injury in the course of the master's business. Woods v. Clements, 113 Miss. 720, 74 So. 422, and reported again on Suggestion of Error, 114 Miss. 301, 75 So. 119. This was further definitely decided in the case of Dempsey v. Frazier, 119 Miss. 6; Winn v. Halliday, 109 Miss. 691, 69 So. 695. Especially is this true in the instant case, on the state of the pleadings--the court having submitted the case on the second count of the declaration, which alleges: "Because defendant L. B. Anderson, entrusted his Ford and disabled car without brakes to his minor son, sixteen to seventeen years of age, as his agent to drive and direct said car on a special mission and task assigned him by his father." As a matter of fact there is a total lack of evidence to support any such contention.

It is true, the second count of the declaration further alleges that the said defendant knew that his son was careless and reckless in the manipulation and use of said car, but the second count of said declaration, so far as the evidence or lack of evidence reflected by the record, is based or predicated upon a false premise--that is a limited relationship of master and servant between the father and the son, in this, that he entrusted said car to his minor son "as his agent to drive" and direct said car on a special mission and task assigned him by his father; and the court by giving the peremptory instruction, as he properly did to the first count of the declaration--there being no evidence to support any relationship of master and servant between the father and son, fell into grave error in refusing to grant the peremptory to the whole declaration, for there was a material variance between the allegations of the declaration and the proof, and the case was submitted to the jury upon issues not made by the pleadings and the proof, and the verdict is, therefore, based upon an issue not before them and a false premise. We are not unmindful of our statute on variances and kindred statutes and decisions thereunder, for it is our view that they do not apply to such a case as this--where our demurrer to the evidence, seasonably made, in the form of a request for a general peremptory instruction to the whole declaration goes right to the heart of the lawsuit.

Conceding for the sake of the argument, and stretching our imagination, that the second count of the declaration in the case at bar is based on the theory that the father knowing, or as a reasonable man should have known, that his son, James, was a reckless and careless driver "and was careless and reckless in the use and manipulation of said car and whose reckless driving habitually endangered the lives and property of travellers and pedestrians on the public road, which said defendant allowed his minor son to frequent, and that so knowing the habitual reckless driving of said car by his said son, at the time and in the manner aforesaid, entrusted same to his said son," etc., using the language of counsel in the first count of the declaration, where is there any competent evidence in this record to support any such contention?

There was no authority for him to use said car at said time and it was not entrusted to him either for use on his father's business or for his own recreation, pleasure or convenience--the father not being liable for the torts of his minor son--his use of said car, therefore, even if he had used it, having no connection with his use or handling of it on this specific occasion when this accident occurred.

The evidence further fails to show by competent testimony that the defendant's minor son was a careless and reckless driver, there being no witnesses introduced, or any competent testimony whatever which would bring home to the father knowledge--either actual, or such that he as a reasonable man should have known, that his son was a careless and reckless driver.

The only testimony introduced by the plaintiff even tending to establish a careless and reckless tendency in driving on the part of the defendant's minor son, were the witnesses Basham, Darracott, Holman, Nevins, Boyd, and Alexander. The extent of their testimony along this line was to the effect that in their opinion it seemed like he was a reckless driver--some of them stating, merely that he was a fast driver.

It is a well-settled rule that in an action involving the competency of a driver of a motor vehicle, that a witness should not be permitted to give his opinion as to the competency of the driver in question, for the jury is capable of drawing the proper inference from a statement of the facts. Huddy on Automobiles, (5 Ed.), sec. 296, page 359; Black v. Blacksher, 66 So. 863.

It has also been held that it would be competent in bringing knowledge to the father of the recklessness and carelessness of the son, if he was such, to have shown that he had been specifically negligent on other occasions, which resulted in accidents. Section 130, Berry on Automobiles, page 151. But there is a total lack of any such evidence here, and knowledge cannot be brought home to the father, and liability fastened upon him from the mere opinions of five or six witnesses that in their opinion he was a reckless driver without specific acts of negligence based upon facts so that the jury might determine whether he was such a driver or not. Something else must follow, too--the recklessness and carelessness of the minor son and the knowledge of the father of such recklessness and carelessness, and that is that the father must have entrusted or habitually allowed his car to be driven by his minor son knowing that he was a careless and reckless driver.

In Wood v. Clement, 113 Miss. 720, 74 So. 422, it was held that where a defendant, a member of a real estate firm, which owned an automobile, allowed his family to use the car when it was not necessary for his business and his adult daughter (to whom he at times gave permission to drive said automobile) without his express consent, but with his implied consent, took the car for a pleasure trip, on which trip she collided with the car of plaintiff, in such case the daughter was not the servant of defendant in operating the car, and he was not liable for her negligence.

In Dempsey v. Frazier, 119 Miss. 1, 80 So. 341, where the father, who had given his minor son an automobile was sued for the negligence of the son in operating said car, it was held that the parent of a minor child cannot be held liable for the tortious acts of the child on the mere ground of parental relationship, but that the parent is responsible only on the same grounds that he is for the torts of other persons; and that in order for him to be made liable, the relationship of master and servant must have existed at the time of the accident from which the injuries resulted.

This is also the rule as again laid down by the court in Winn v....