Cowart v. Lewis

• Decision Date: 11 June 1928
• Docket Number: 27252
• Citation: 151 Miss. 221,117 So. 531
• Court: Mississippi Supreme Court
• Parties: COWART v. LEWIS. [*]

117 So. 531

151 Miss. 221

COWART v. LEWIS. ^[*]

No. 27252

Supreme Court of Mississippi

June 11, 1928

Division A

1 AUTOMOBILES. Automobile driver's negligence in driving at excessive speed during rain at time of injury to passenger held for jury.

Negligence of driver of automobile in driving at excessive speed during rain resulting in losing control of car and injuring passenger in overturning held for jury.

2 AUTOMOBILES. Husband riding in front seat of automobile owned jointly by Himself and wife held liable for injuries to passenger resulting from wife's negligent driving.

Where husband, at time of injury to passenger in automobile owned jointly by himself and wife, was riding in the front seat beside wife, who was driving In a negligent manner, and heard remonstrances of other occupants of the car, he was liable for Injuries to passenger occasioned on account of wife's negligent operation of automobile.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by Mrs. Lillie D. Lewis against W. E. Cowart. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

T. J. Wills and Berry & Wills, for appellant.

Currie & Currie, Paul B. Johnson and D. T. Currie, for appellee.

Argued orally by Lester E. Wills, for appellant.

OPINION

MCGOWEN, J.

Appellant, W. E. Cowart, and his wife planned a pleasure trip from Hattiesburg, Miss., to Mobile, Ala.; appellee and another being invited to accompany them as guests. The trip was made through the country in an automobile which was owned jointly by the appellant and his wife, they taking turns at driving the machine. After spending the night in Mobile, the party left for home with Mrs. Cowart driving and appellant on the front seat beside her. When about fifteen miles from Mobile, they encountered a heavy rain, the rain falling so furiously and in such torrents that it was impossible to see for more than fifteen or twenty feet in front of the car. The gravel and clay road became exceedingly slick and all of the depressions therein filled with water. Mrs. Cowart continued to drive the car at a speed of about twenty-five or thirty miles per hour, although cautioned by appellee on several occasions to be careful and not to drive so fast. Under these circumstances, and with the road in this condition, they suddenly ran upon a hole near the center of the road, and Mrs. Cowart, in attempting to avoid hitting the said hole, lost control of the car so that it left the road and headed for the ditch. She called upon her husband to help her, and he grabbed the wheel and endeavored to straighten the car out, but was unable to do so. The car slid into the ditch and turned over on its side, throwing the appellee against the left side of the car, breaking the window glass and severely cutting and injuring her.

This suit was brought against the husband, seeking to hold him liable for the alleged negligent operation of the automobile by his wife, and the injuries occasioned the appellee thereby.

We think the facts in this case were sufficient to cause the case to be submitted to the jury in so far as the negligence of Mrs. Cowart was concerned. The appellant, however, strenuously insists that he should not be held liable for the negligence of his wife, arguing that no agency relationship, either express or implied, has been shown to exist between himself and his wife, referring to the common-law liability of the husband for the torts of his wife as related to our statute removing, to some extent, the disability of the coverture of the wife.

Pretermitting a decision of the question of the agency relationship alleged to exist between the appellant and his wife, because such decision is not necessary for the determination of this question, we are yet of the opinion that the appellant is liable for the negligent operation of the automobile on the occasion in question.

The undisputed testimony in this case shows that the appellant and his wife owned the car jointly, each of them having paid one-half of the cost thereof, and each of them contributing equally, to its upkeep and maintenance. The car was used for their mutual entertainment and pleasure, and on the occasion was being driven by them to Mobile on a pleasure trip for the mutual...