Burbage v. Curry
| Decision Date | 29 December 1923 |
| Docket Number | (No. 11383.) |
| Parties | BURBAGE. v. CURRY et al. |
| Court | South Carolina Supreme Court |
Petition for Rehearing Dismissed Feb. 14, 1924.
Appeal from Common Pleas Circuit Court of Greenville County; T. S. Sease, Judge.
Action by H. P. Burbage against W. E. Curry and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Martin & Blythe, of Greenville, for appellants.
Bonham & Price, of Greenville, for respondent.
COTHRAN, J. Action for damages on account of a collision between the automobile of the plaintiff and that of the defendant Curry, due to the alleged negligence of the defendant Drummond, who was at the time operating the automobile of the defendant Curry.
The jury rendered a verdict in favor of the plaintiff for $500, and the defendants have appealed.
The main contention of the defendant Curry upon the trial of the case was that he was not responsible for the negligence, if any, of the defendant Drummond who was driving the car, based upon the following facts which the evidence in his behalf tended to show:
The car belonged to Curry, whose family consisted of himself and his wife. He testified that he had not authorized' Drummond to drive it and had given Mrs. Curry express instructions not to allow other persons to drive It. She testified less strongly that when the car was bought Mr. Curry stated that after she learned to drive it he preferred that she allow no one else to do so. On the morning of the day of the collision Mrs. Curry drove the 'car to Greenville, and in returning that afternoon took in the young man Drummond, a student at Furman University and her brother, a boy about 12 years old. She testified that she was not an expert driver, and "I asked Fred (Drummond) if he would not drive because he was a very careful driver and never had any trouble, and he was considered an excellent driver;" that they had not had the car very long; that it had rained very hard before they started to return.
While it is true that before a principal can be held responsible for the tort of another who is alleged to have been his agent, it must be made to appear that such person was his agent, and that the tort was committed while the agent was engaged, not simply within the apparent, but within the actual scope of the agency (Goble v. Express Co. [S. C.] 115 S. E. 900), the circuit judge, in view of the foregoing evidence could not have directed a verdict in favor of the defendant Curry upon either ground, that it did not appear that Drummond was his agent, or that Drummond was not at the time actually engaged in the scope of his agency.
Under the cases of Davis v. Littlefleld, 97 S. C. 171, 81 S. E. 487. Osteen v. Oil Co., 102 S. C. 146, 86 S. E. 202, L. R. A. 1916B, 629, and Keen v. Army Cycle Co. (S. C.) 117 S. E., 521, when one is found in possession of property of another, using it in the service of such other, he is presumed...
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