Herrman v. Maley

• Decision Date: 23 February 1931
• Docket Number: 28816
• Court: Mississippi Supreme Court
• Parties: HERRMAN v. MALEY et al

132 So. 541

159 Miss. 538

HERRMAN v. MALEY et al

No. 28816

Supreme Court of Mississippi

February 23, 1931

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

Action by John Herrman against C. E. Maley, Sr., and wife and another. Judgment for the plaintiff against the defendant Richard Maley, and from a judgment in favor of defendant named and wife, upon a directed verdict, plaintiff appeals. Reversed, and case remanded.

Reversed and remanded.

Watkins Watkins & Eager, of Jackson, and Brunini & Hirsch, Thames &amp Thames and W. W. Ramsey, all of Vicksburg, for appellant.

When an automobile is driven by a minor child of the owner with the latter's knowledge or permission, and such child is 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 his child to operate the car. The parent, who has a right to the services of his minor child and is charged with its discipline and control, must suffer the consequences of permitting the child to drive his automobile under such circumstances.

Huddy on Automobiles (5 Ed.), section 662, p. 863; Anderson v. Daniel, 136 Miss. 456, 101 So. 498.

The owner of a motor vehicle may be held liable for a resulting injury upon the ground of negligence where he intrusts the operation of his vehicle to an inexperienced or incompetent driver with knowledge of such incompetency, some of the cases resting upon the theory that in so doing he converts the vehicle into a dangerous instrumentality. This liability does not rest upon the doctrine of respondeat superior, but nevertheless the injurious conduct of the driver resulting from his incompetency is a necessary factor in the liability of the owner. Hence, the operator need not have been the servant or agent of the owner, and may have been engaged upon his own personal business.

42 C. J., page 1078, par. 836; Rocca v. Steinmetz, 61 Cal.App. 102, 214 P. 257; Tyree v. Tudor, 183 N.C. 340, 111 S.E. 714; Robertson v. Aldridge, 183 N.C. 292, 116 S.E. 742; Gadsiewski v. Stemplesky, 160 N.E. 334; Waddle v. Stafford, 104 Okla. 192, 230 P. 855; 2 Berry on Automobiles (6 Ed.), pages 1083-1095; 36 A. L. R. 1156 and note.

Appellees state that we must fail on this appeal because the declaration states joint ownership of the Dusenberg car; tort-feasors may be sued jointly or severally; that one joint tort-feasor is not relieved by a judgment against the other in the absence of payment or satisfaction.

Sawmill Construction Co. v. Bright, 116 Miss. 491; Waterman-Fouke Lumber Co. v. Miles, 135 Miss. 146; Oliver v. Miles, 144 Miss. 852; Bailey v. Delta Manf. Co., 86 Miss. 634.

Green & Green, of Jackson, for appellees.

Where the declaration fails to state a cause of action, a proper remedy, at any time before verdict, is by motion for a directed verdict.

Spann v. Grant, 83 Miss. 22-3; So. Ry. Co. v. Grace, 95 Miss. 611, 49 So. 835; 49 C. J., pp. 820, 839.

"The family car" doctrine upon which the declaration is based, is repudiated by this court, and that of master and servant, agency established.

Winn v. Haliday, 109 Miss. 691, 69 So. 685; Woods v. Clements, 113 Miss. 720, 74 So. 422; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Smith v. Dauber, 155 Miss. 699, 125 So. 102.

Plaintiff cannot declare on a joint cause of action and recover on a several one.

Spann v. Grant, 83 Miss. 22-3; Gulf Refining Co. v. Wilkinson, 114 So. 49.

The owner of an automobile maintained for the use and pleasure of his family is not liable for injuries caused by negligence of his son in driving it, if the son, who is a member of his family and permitted at times to use the car, has it out against orders, for his own pleasure, at the time of the accident.

Hays v. Hogan, L. R. A. 1918C, p. 715.

Where the son did not drive the automobile at the time of the accident with either the knowledge, consent, approval, or direction of the father or in his place or stead, the father cannot be held responsible upon any theory.

Denison v. McNorton, 228 F. 401, 142 C. C. A. 631.

The mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained by its operation by the owner's minor son, while operating the same on a public street or highway in furtherance of the son's own business or pleasure. The fact that the son had the father's special or general permission to use the car is wholly immaterial.

Achin v. Pace, 287 Ill. 420, 123 N.E. 30, 5 A. L. R. 216; Lewis v. Steele, 157 P. Rep., page 577; Robertson v. Aldridge, 116 S.E. 742; Linville v. Nissen, 77 S.E. 1099; Rew v. Stoddard, 225 S.W. 836; Parker Administrator v. Cunningham Wilson, 179 Ala. 361, 60 So. 150, 43 L. R. A. (N. S.) 87; 2 Blashfield's Cyclopedia of Automobile Law, page 1455.

Argued orally by Pat H. Eager, for appellant, and by Marcellus Green, for appellees.

Anderson, J., Cook, J., concurring. Smith, C. J., Ethridge, J., dissenting.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of the first district of Hinds county against the appellees, C. E. Maley, Sr., his wife, Mrs. Elizabeth Maley, and their minor son, Richard Maley, to recover damages for an injury received by appellant caused by an automobile driven by Richard Maley running into another automobile under which the appellant was situated at the time trying to extinguish a fire which had broken out under it. As a result of the collision the appellant was seriously, and the evidence tended to show permanently, injured. The grounds of recovery were the alleged negligence of Richard Maley, in driving the car, and of appellees, his parents, in permitting him to drive the car, because they knew he was a reckless and dangerous driver. The court directed a verdict on the question of liability against Richard Maley, and the jury returned a verdict against him in the sum of six thousand five hundred dollars, from which judgment no appeal is prosecuted. As to the appellees C. E. Maley, Sr., and his wife, the court directed a verdict and judgment in their favor, and from that judgment the appellant prosecutes this appeal.

The declaration was in two counts. In the first count, the appellant sought to hold the appellees liable on the family car doctrine, and, in the second count, upon the ground of Richard Maley's negligence, in conjunction with appellees' negligence in permitting their son, Richard, a minor, to drive their car knowing that he was a reckless and dangerous driver.

Appellees' demurrer to the first count of the declaration was sustained, and trial was had on the second count and the plea of general issue thereto.

Richard Maley was about seventeen years of age at the time of the injury, and was living in the home of appellees, his parents. At the time of the accident he was driving a Dusenberg car, which, together with a Lincoln car, was owned by the appellees. The appellee C. E. Maley, Sr., testified that he bought both of these cars; that he gave the Dusenberg car to his wife, but that on the very day of the accident he had bought a new car for his wife and had taken over the Dusenberg car for his own use.

The evidence for the appellant was to the effect that young Maley was a reckless and dangerous automobile driver, and had that reputation in the community where the family lived, and for that reason the appellees' liability insurance on their two cars had been canceled.

The appellees, as witnesses in their own behalf, testified that they did not know their son was a reckless automobile driver, but that on account of the prior accidents they had forbidden him to drive either of their cars, and that at the time of the injury complained of they were not aware that Richard Maley, their son, was out in the Dusenberg car. However, George Gowdy, a friend and companion of young Maley and about his age, testified that on the night of the accident causing the appellant's injury he had arranged to spend the night in the Maley home as their guest; that the accident occurred about 9:30 at night on the Clinton and Jackson road; that he and young Maley had been out in the Dusenberg car earlier in the night returning to the Maley home in Jackson about 8:30. That on the first trip they left about 6:30 or 7:00 o'clock P. M.; that both the appellees were present when they went on the first trip; that young Maley told the appellees that they were going riding in the car, to which the appellees gave their assent. That when they returned from the first trip to the Maley home both the appellees were present and saw them when they returned, and that the father then said to them, "Don't take it out (meaning the Dusenberg car) because we are going to the picture show;" that neither of the appellees made any objection to young Maley and the witness going out in the car, but merely requested that they not use it again that night because appellees wanted to use it for the purpose of going to a picture show. The testimony of the witness Gowdy tended to show further that he and young Maley had frequently gone out riding together sometimes in the appellees' Dusenberg car and sometimes in their Lincoln car, and that the appellees knew these facts.

On cross-examination, the appellee, Mrs. Elizabeth Maley, testified in part as follows:

"Q. Had your son, Richard, been driving a car before this accident--this last accident--the one when he struck the Herrman boy? A. He had been driving off and on, but not a great deal, because he has been away at school so much he didn't have an opportunity to drive.

"Q. I asked you how long he had been driving a car? A. From the time he was...