Howle v. McDaniel

• Decision Date: 11 December 1957
• Docket Number: No. 17365,17365
• Citation: 232 S.C. 125,101 S.E.2d 255
• Court: South Carolina Supreme Court
• Parties: B. H. HOWLE, Appellant, v. Edward McDANIEL, Respondent.

Page 255

101 S.E.2d 255

232 S.C. 125

B. H. HOWLE, Appellant, v. Edward McDANIEL, Respondent.

No. 17365.

Supreme Court of South Carolina.

Dec. 11, 1957.

Yarborough & Parrott, Florence, for appellant.

John M. Scott, Florence, for respondent.

LEGGE, Justice.

On August 24, 1956, at eleven o'clock at night, a collision occurred on Commander Street in the city of Florence, S. C., between a 1950 Ford automobile, the property of the plaintiff Howle, which was being driven by one Eugene Brown, and a 1942 Chevrolet owned and driven by the defendant McDaniel. Howle sued McDaniel in the Civil Court of Florence for the damage to the Ford; McDaniel pleaded a general denial and contributory negligence and counterclaimed for the damage to the Chevrolet and for his personal injuries alleged to have been sustained as the result of Brown's negligent operation of the Ford.

At the conclusion of all the testimony the trial judge, holding that it was susceptible of no reasonable inference other than that the collision had resulted from the negligence of both drivers, directed a verdict against the plaintiff on the cause of action set forth in the complaint, and against the defendant on that set forth in the counterclaim. Thereafter, plaintiff's motion for judgment n. o. v. or, in the alternative, a new trial, was denied.

The plaintiff alone appeals, and by his exceptions charges error on the part of the trial judge in directing a verdict against him.

Mr. Howle, an elderly man, operated a combination grocery store and automobile service station on the Timmonsville highway not far from the city of Florence. Eugene Brown, the driver of the Ford, had been in his employ for some five or six years, helping about the store and sometimes delivering merchandise. Brown also worked, occasionally, as a painter, on his own time. As to whether or not, at the time of the accident, Brown was engaged within the scope of his duties as Mr. Howle's employee, there was no testimony other than that of Brown himself and Mr. Howle.

Brown, who lived on Sumter Street in the city of Florence, testified: that he always kept Mr. Howle's Ford car at night, using it to go home after work and to return to work in the morning; that occasionally he used the car to make delivery of groceries; that his work for Mr. Howle consisted of helping with the sale of gasoline, oil and groceries, and running the store when Mr. Howle went home for dinner; that when there was nothing for him to do at the store he would, with Mr. Howle's permission, work as a painter; that on August 24, 1956, he quit work at the store at 7:30 p. m., took the car to his home, and later that evening went, in the car, to visit his uncle, who had been sick; that from his uncle's house he stopped by to see a friend, Joe Rogers, who lived on Wilson Street; and that from Rogers' house he was driving home, alone, when the collision occurred.

Mr. Howle testified as follows:

'Q. (by defendant's counsel): Well, what was it (the Ford car) used for, Mr. Howle? A. It was mostly used for me to go home and back in and for Eugene to go home in. Eugene was driving me at that time, I wasn't able to drive, he was doing my driving, and that is why he was taking it home with him.

'Q. I see, and he kept it, and it enabled him to get back and from work at his convenience? A. That is right.'

And, upon being recalled:

'Q. (by plaintiff's counsel): For what purpose did Eugene Brown have your automobile on the night of August 24th when this wreck occurred? A. Well, you want me to tell you the reason why?

'Q. Yes, sir. A. Well, at that time and before that time I was sick and Gene stayed with me. Gene stayed with me and I fed him and I let him take my car home and bring it back and pick me up at the house, I gave him breakfast and we went on to the store. If he had a paint job to do I let him have my car to do the paint job.

'Q. Now, for what purpose did you let him have the car at night? A. Just for him to go home and come back and pick me up.

'Q. How far did he live from you? A. Well, I would say approximately a couple of miles.

* * *

* * *

'Q. (by defendant's counsel): Mr. Howle, you said that Brown, Gene Brown, had the right to take the car on home with your permission? A. Yes, sir.

'Q. Now, when he painted, he wasn't doing the painting for you, that was on his own time wasn't it? A. Yes.

'Q. And he had permission to take the car to paint, if he so desired? In other words, he could do with the car anything he wanted to until he needed it the next morning to bring you to work? A. No, my instructions was for him not to carry it away from the house.

'Q. But he did it, he took it for paint work and other things? A. Yes, with my permission.

'Q. Yes, with your permission. In other words, he had the car at his house and he could go painting or anything else unless you wanted him to take you to work, isn't that right? A. Not at night.

'Q. Did you tell him not to take the car at night? A. Yes.

'Q. Specifically, not to use the car at night? A. Yes.

'Q. In other words, whenever he took the car at night it was without your permission? A. Not to use it but to go home and come back next morning.

'Q. Well what is the difference between using the car for that and going to work to paint with? A. Well, I give him permission to use it whenever--he always asked me for it and I let him have it.

'Q. In other words, you never have refused to let him use it, whenever he asked you for it, have you? A. Well, I wouldn't say I haven't, I have done it in times past.

'Q. Do you recall any particular time when he asked and you refused to let him have it? A. Yes, I can recall one time----

'Q. What? A. I can recall one time. He wanted to use my car to go to a funeral and I didn't let him have it.

'Q. But you let him take the car home every night? A. Yes, that is right.

'Q. And the car was his to take home? A. With my permission, he had the car to take home.'

It is manifest from the foregoing that at the time of the accident Brown was not acting within the scope of his duties as Mr. Howle's employee, but was using the car for his own purposes in nowise connected with such employment. His contributory negligence, if any, could not, therefore, be imputed to Mr. Howle under the doctrine of respondeat superior. Holder v. Haynes, 193 S.C. 176, 7 S.E.2d 833. But the trial judge, despite his recognition of the absence of master and servant relationship between Howle and Brown at the time of the accident, directed a verdict against Howle upon the theory that Brown's negligence was imputable to him. To quote from his ruling:

'I would be obliged to hold that the only reasonable inference to be drawn from the evidence in this case is that at the time this accident occurred, even if the servant was negligent, he was acting outside the scope of his employment, and so I would be constrained to grant the motion (i. e., plaintiff's motion for a directed verdict as to the counterclaim), but I don't see, gentlemen, that there is any need for me to submit any issue in this case to the jury. It is one of those cases where I am forced to conclude that the only reasonable inference to draw from all of the evidence, on both sides, is that there has been a showing by the plaintiff of negligence on the part of the operator of the defendant's car, and on the contrary there has been a showing of negligence by the defendant on the part of the operator of the plaintiff's car and that the doctrine of contributory negligence has been established. * * * There was negligence on the part of the operator of the defendant's car and there was negligence on the part of the operator of the plaintiff's car. * * * The negligence that might have been established by the plaintiff against the defendant has been offset by the proof by the defendant of negligence on the part of the plaintiff. Now that means that neither one is entitled to recover any damages against the other.'

In the operation of the Ford car at the time of the accident Brown was neither servant nor agent of Mr. Howle. Their relationship was that of bailor and bailee; and Brown's contributory negligence, if any, was therefore not imputable to Howle. 8 C.J.S. Bailments § 40, p. 318, Section 56, p. 373; 60 C.J.S. Motor Vehicles § 439, p. 1108; Am.Jur., Bailments, Section 310, p. 407; 5A Am.Jur., Automobiles and Highway Traffic, Section 635, p. 627. Annotations: 6 A.L.R. 316 et seq.; 22 A.L.R. 1246, 1248.

Liability of a bailor for injury to a third person by the bailed property in the possession of the bailee rests, not upon the bailee's negligence, but upon that of the bailor himself. Thus a bailor may be liable to a third person so injured where he has entrusted a dangerous article to one whom he knows to be ignorant of its dangerous quality, or an automobile to one whom he knows to be so reckless or incompetent that danger to third persons would be a reasonably probable consequence of his operation of it. So also may the bailor incur liability if injury to the bailee or another is proximately caused by a dangerous hidden defect in the bailed article, of which the bailee had no knowledge or reason to know, but which was known to the bailor at the time of the bailment. 6 Am.Jur., Bailments, Sections 314, 316, pp. 411, 413. But nothing in the evidence here warrants inference of liability on the part of the bailor under this rule.

There is no issue before us as to Howle's liability to McDaniel, because the latter did not appeal from the verdict directed against him on his counterclaim. But the same reasoning that imposes liability upon a bailor to a third person injured as the result of his negligence would bar his recovery against such third person for negligently damaging the bailed property, if such negligence of the bailor contributed as a proximate cause of the damage and has been so pleaded by way of defense. In the instant case, however, McDaniel's plea of contributory negligence was directed not...