Culpepper v. Holmes

Decision Date14 May 1934
Docket Number31248
Citation170 Miss. 235,154 So. 726
CourtMississippi Supreme Court
PartiesCULPEPPER v. HOLMES et al

Division B

1 AUTOMOBILES.

Family purpose doctrine, as to automobiles, does not apply in Mississippi.

2 AUTOMOBILES.

Automobile owner held not liable for driver's negligence because he loaned car to driver with understanding that owner's son would make trip with driver.

3. APPEAL AND ERROR.

Judgment against automobile driver for injuries held separable from judgment for codefendant automobile owner, so that driver not having appealed, could not cross-assign errors on plaintiff's appeal from judgment for owner.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Action by A. M. Culpepper against D. B. Holmes and another. From a judgment for named defendant, plaintiff appeals. Affirmed. See Culpepper v. Holmes, 170 Miss. 239.

Affirmed.

J. Thomas Dunn, of Meridian, for appellant.

The jury should have been permitted to say whether the relation of master and servant actually existed.

To establish this relation of master and servant there need not be either an express contract or compensation. The relationship may arise from an implied agreement.

Woods v. Clements, 74 So. 422, 113 Miss. 720.

The cases are also uniform in their holdings that the test of the relation of master and servant is the right to select, control and discharge the servant.

39 C. J. 1269, par. 1454.

Where the evidence is conflicting and more than one inference can be drawn therefrom, it is a question for the jury to determine whether the relationship of master and servant existed at the time of the injury complained of.

Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; 39 C. J. 1362, par. 1592.

Bozeman & Cameron, of Meridian, for appellee.

Appellant's only hope for recovery would be bound to grow out of the family purpose doctrine, or the dangerous instrumentality doctrine, both of which have been specifically repudiated by this court.

Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Smith v. Gauber, 155 Miss. 694, 125 So. 102; Sharples v. Watson, 157 Miss. 236, 127 So. 779; Murphy v. Willingham, 160 Miss. 94, 133 So. 213; Harrington v. Gough, 164 Miss. 802, 145 So. 621; Hobson v. McLeod, 165 Miss. 853, 147 So. 778.

OPINION

Ethridge, P. J.

A. M. Culpepper, plaintiff in the court below, brought suit against D. B. Holmes and Donald McLean for personal injuries inflicted by the car of D. B. Holmes driven by Donald McLean, which injuries occurred on one of the thoroughfares of a city, and which were very serious.

It appears from the evidence that there was a football game scheduled to take place at Laurel, and that Donald and David McLean and David Holmes, the minor son of D. B. Holmes, were returning from Laurel shortly before twelve o'clock at night. The trip was merely for the purpose of seeing the game scheduled; David Holmes desired to attend same, and his father, D. B. Holmes, asked Donald McLean if he would take the car and drive it, taking appellee's son, David Holmes, and the other boys to attend the game. They made the first trip, but on account of rain the game was not played, but was postponed. On the day of the accident, D. B. Holmes asked Donald McLean if he desired the car to go to the game and if he would take David on the trip, which was agreed to, and the accident occurred as they were returning from the game. On the evening of the accident, Culpepper walked across a thoroughfare to get some cigars, and on his return trip he looked and saw a car some little distance away--there being some conflict in the testimony as to how far the car was from Culpepper--and without looking further proceeded to cross the street. When the car was near Culpepper, some one cried "Look out," and Culpepper's companion stepped aside, but Culpepper was struck and injured.

The defendants Donald McLean and D. B. Holmes were both introduced as adverse witnesses and testified that the car was loaned to Donald McLean merely for the purpose of attending the game, and for no other business of D. B. Holmes; that he never made any charge for the car, and frequently loaned it to other people without charge.

At the conclusion of the plaintiff's testimony, a motion was made for a directed verdict for R. B. Holmes which was sustained. The...

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8 cases
  • Delta Cotton Oil Co. v. Elliott
    • United States
    • Mississippi Supreme Court
    • May 24, 1937
    ... ... v. Kennedy, 167 Miss. 305, 141 ... So. 335; Primos v. Gulfport Laundry & Cleaning Co., ... 157 Miss. 770, 128 So. 507; Culpepper v. Holmes, 170 ... Miss. 235, 154 So. 726; 3 C. J. S. Agency, 187, par. 255; ... Hannis v. Driver, 68 Penn. 548 ... Appellant ... ...
  • Avent v. Tucker
    • United States
    • Mississippi Supreme Court
    • March 18, 1940
    ...the proof shows that Mrs. Avent was merely the guest of Mr. Avent. C. & G. Ry. Co. v. Lee, 149 Miss. 543, 115 So. 782; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726; Sharples v. Watson, 157 Miss. 236, 127 So. Atwood v. Garcia, 167 Miss. 144, 147 So. 813; Meridian Light and Ry. Co. v. Denn......
  • Dement v. Summer
    • United States
    • Mississippi Supreme Court
    • February 10, 1936
    ...114 Miss. 301, 75 So. 119; Harrington v. Gough, 164 Miss. 802, 145. So. 621; Smith v. Dauber, 155 Miss. 694, 125 So 102; Culpeper v. Holmes, 170 Miss. 235, 154 So. 726; Hobson v. McLeod, 165 Miss. 853, 147 So. The court below erred in submitting the case to the jury without requiring the pl......
  • Roy v. Hammett Motors, Inc
    • United States
    • Mississippi Supreme Court
    • January 2, 1940
    ...incompetent person to have control over automobile. Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Culpepper v. Holmes, 170 Miss. 239, 154 So. 726; Sharples v. Watson, 157 Miss. 239, 127 So. Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258. Argued orally by B. E.......
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