Atwood v. Garcia

• Citation: 147 So. 813,167 Miss. 144
• Decision Date: 01 May 1933
• Docket Number: 30565
• Court: Mississippi Supreme Court
• Parties: ATWOOD v. GARCIA

147 So. 813

167 Miss. 144

ATWOOD v. GARCIA

No. 30565

Supreme Court of Mississippi

May 1, 1933

Division A

Suggestion Of Error Overruled June 12, 1933.

APPEAL from circuit court of Lawrence county HON. J. Q. LANGSTON Judge.

Action by Bevel Garcia against Mrs. Fannie P. Atwood. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Wells, Jones, Wells & Lipscomb, of Jackson, and G. Wood Magee, of Monticello, for appellant.

An automobile or auto truck is not a dangerous instrumentality, so as to render its owner liable for negligent use of it on a highway by the owner's employee, who had borrowed it for a purpose disconnected with owner's business.

Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258.

To make the owner of an automobile liable for injuries inflicted by a chauffeur operating the automobile, the servant must be engaged in and about his master's business at the time of the injury, and where a motor truck was hired by the day, together with a driver, the driver being paid by the owner but working for and subject to the direction of another, the owner is not liable for the negligence of the driver.

Winn v. Haliday, 109 Miss. 691, 69 So. 685; Isaacs v. Prince and Wilds, 133 Miss. 195, 97 So. 558; Smith v. Dauber, 155 Miss. 694, 125 So. 102.

Plaintiff did not even sufficiently establish that defendant, Mrs. Atwood, owned the Chevrolet car involved, but conceding defendant did own it, there is not a scintilla of proof that Mrs. Holloway was defendant's servant; there is not a scintilla of proof that Mrs. Holloway was driving the car for defendant's benefit or at defendant's express or implied request; there is not one scintilla of evidence that the defendant was negligent in permitting Mrs. Holloway to drive the car.

Woods v. Clements, 113 Miss. 720, 74 So. 422; Dempsey v. Frazier, 119 Miss. 1, 80 So. 341; Sharples v. Watson, 157 Miss. 236, 127 So. 779; Primos v. Gulfport Laundry and Cleaning Co., 157 Miss. 770, 128 So. 507; Murphy v. Willingham, 160 Miss. 94, 133 So. 213.

The court erred in overruling defendant's motion for a new trial for that the verdict of the jury was grossly excessive.

In order that a statement offered as an admission may be received it must, at the time when it is offered, be relevant to, and have a material bearing upon, the issue in the case, but if the statement itself possesses these characteristics it is not necessary that the transaction in connection with which it was made should be relevant and material.

22 C. J. 299.

To warrant directed verdict for plaintiff, evidence must be such that no other reasonable inference can be drawn therefrom except liability on defendant's part.

Rhodes v. Fullilove, 134 So. 840.

H. J. & E. B. Patterson, of Monticello, and W. D. Hilton, of Mendenhall, for appellee.

It is our position that when the plaintiff established the ownership of the car and showed by the proof that the owner was riding in the car at the time of the collision by the side of the driver and showed further that the driver was negligent in the operation of the car, that without further proof, or proof to the contrary offered by appellant, the plaintiff was entitled to an instruction that the defendant was liable. This is based upon the theory that the prima-facie statute of the state coupled with the presence of the owner at the time of the accident makes the defendant liable because the negligent act of the driver was imputed to the owner who was present and occupying the car, both because of the application of the prima-facie statute and because of the rule of law upon implied or imputed negligence.

Section 5588, Code of 1930; B. F. Tice v. Mrs. Leila Crowder, 42 A. L. R. 899, 909; Buckner v. Gambaro, 9 S.W.2d 919 (Mo.); Hammond v. Hazard, 40 Cal.App. 45, 180 P. 46; Day v. Isaacson, 124 Me. 407, 13 A. 212; Louisville Lozier Co. v. Salle, 167 Ky. 499, 180 S.W. 841; Shea v. Heming, 97 Conn. 149, 115 A. 686; Carpenter v. Automobile Company, 159 Iowa 52, 140 N.W. 225.

In the case at bar, J. H. Farmer testified positively that the car was Mrs. Atwood's and that she so said at the time and on the day of the collision. In the Hammond case, supra, the appellate court upheld the verdict where the evidence of ownership was a statement made by the defendant to a witness subsequent to the collision that she was the owner of the car and, too, a sharply defined issue was made by the defendants that she was not the owner.

The presumption of use and control arising from proof of ownership of an automobile destroying property of a third person by its negligent operation is not conclusive, but casts the burden on the owner to show that the driver was not his servant or agent or if he was such that he was not at the time he was using the vehicle engaged in the owner's business.

Traywick v. Chambliss, 156 S.E. 269; Baker v. Masseh, 179 P. 53; Randolph v. Hunt, 183 P. 358; Berry on Automobiles (5 Ed.), chapter 14, Injuries to Complainant, other than Driver; Welch v. La. Oil & Refining Co. (La.), 135 So. 617; Aycock v. Burnett, 120 So. 100, 159 Miss. 510; Cowart v. Lewis, 117 So. 531; Terry v. Smylie, 139 So. 162, 161. Miss. 132; Columbus and Greenville R. Railroad Case, 115 So. 782, 149 Miss. 543; Gower v. Strain, 145 So. 245.

OPINION

Smith, C. J.

The appellee, an infant of tender years, who sues by her mother as next friend, recovered a judgment against the appellant for damages resulting to her from a personal injury. At the close of the evidence, the court below charged the jury to return a verdict for the appellee, submitting to them only the amount of damages to be awarded. The giving of this instruction is assigned for error, and also the amount of the verdict, which is said to be excessive.

The evidence discloses that an automobile truck in which the appellee was riding was struck by an automobile driven by Mrs. Holloway in which the appellant was sitting on the front seat...