Maley v. Herman

• Decision Date: 27 February 1933
• Docket Number: 30250
• Citation: 146 So. 309,166 Miss. 811
• Court: Mississippi Supreme Court
• Parties: MALEY et ux. v. HERMAN

146 So. 309

166 Miss. 811

MALEY et ux. v. HERMAN

No. 30250

Supreme Court of Mississippi

February 27, 1933

Division B

Suggestion Of Error Overruled March 27, 1933.

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

Action by John Herman against Mr. and Mrs. Charles E. Maley. From the judgment for plaintiff, defendants appeal. Judgment affirmed as to Charles E. Maley, and reversed and remanded as to Mrs. Charles E. Maley.

Judgment affirmed in part and reversed and remanded in part.

Chalmers Potter and Green, Green & Jackson, all of Jackson, for appellants.

There is no liability upon Elizabeth Maley, the mother, because her seventeen year old son surreptitiously, without the mother's consent, took out an automobile belonging to the father, for his own personal pleasure, in violation of positive directions.

East v King, 77 Miss. 736, 27 So. 608; Miller v. Kraft (N. Dak.), 223 N.W. 190, 191; Hopkins v. Droppers (Wis.), 49 A.L.R. 1523 (note), 210 N.W. 684; Sale v. Atkins (Ky.), 267 S.W. 233; Dailey v. Sneider, 234 P. 951; Frame v. Olmstead, 187 N.W. 18; 2 Berry on Automobiles (6 Ed.), sec. 1782; Bass v. Youngblood, 252 S.W. 872; Ormston v. Lane (Cal.), 266 P. 304; McCormack v. Griffith, 27 S.W.2d 550; Way v. Guest, 272 S.W. (Tex. Civ. App. ) 218; Sultzbach v. Smith (Ia.), 156 N.W. 673, 675; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Woods v. Clements, 74 So. 422, 113 Miss. 720; Wood v. Franklin, 151 Miss. 635, 116 So. 450; Smith v. Dauber, 155 Miss. 691, 125 So. 102; Johnson v. Cornelius, 159 N.W. 318; Hays v. Hogan, L.R.A. 1918C, 715; Lewis v. Steele, 157 P. 577; Robertson v. Aldridge (N. C.), 116 S.E. 742; Linville v. Nissen, 77 S.E. 1099; Brewer v. Browning, 76 So. 519, 115 Miss. 538.

Mrs. Elizabeth Maley is not liable because even though Richard was a dangerous and reckless driver, when such driver surreptitiously takes car his wrongful act in taking is sole proximate cause of injury.

Teche Lines v. Bateman, 139 So. 159, 162 Miss. 404; Huddy Automobile Law (9 Ed.), sections 42 and 43; Danforth v. Fisher (N. H.), 71 A. 536.

Elizabeth Maley is not liable, assuming Richard a reckless and dangerous driver, when she consistently forbade the use of her car in good faith, that being the admeasurement of her legal obligation.

Winn v. Haliday, 109 Miss. 691, 69 So. 685; Woods v. Clements, 74 So. 422, 113 Miss. 720; Wood v. Franklin, 151 Miss. 653, 118 So. 450; Smith v. Dauber, 155 Miss. 691, 125 So. 102; Shell Petroleum Co. v. Kennedy, 141 So. 335; Terry v. Smylie, 133 So. 662, 161 Miss. 31; Coca Cola Co. v. Watson, 133 So. 677, 160 Miss. 173; Gas Co. v. Ferguson, 106 So. 258, 140 Miss. 543; Primos v. Laundry Co., 128 So. 507, 157 Miss. 770; Chaika v. Vandenberg (N. Y.), 169 N.E. 104; Ewing v. Davis, 261 Ill.App.Ct. Rep. 434, 435; Daughterty v. Woodward (Ga.), 94 S.E. 636, 637; Guthrie v. Missouri Pac. R. Co., 279 S.W. 210, 211.

Elizabeth Maley is not liable with C. E. Maley under the evidence.

Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Spann v. Grant, 83 Miss. 19, 35 So. 217.

It was error to give plaintiff's instruction No. 1. Elizabeth Maley is made liable, even though she did not have actual knowledge that Richard was a reckless and dangerous driver, if "the said defendants should have known of such fact by the exercise of reasonable diligence on their part, and said defendant should have known of the fact that said car was in the possession of their said minor son at the time of the accident by the exercise of ordinary care on their part."

9 C. J. 1292; 17 C. J. 1126.

There is no requirement under this instruction that the parent have knowledge of the alleged character before the date of plaintiff's injuries.

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

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.

Huddy on Automobiles (5 Ed.), section 662, p. 863; Elliott v. Harding, 107 Ohio State, 501, 140 N.E. 338; 36 A.L.R. 1128; Smith v. Nealey et ux, 298 P. 345, 346; Gardner v. Solomon, 200 Ala. 115, 75 So. 621; Laney v. Blackburn, 144 So. 126; Mitchell v. Churches, 191 Wash. 547, 206 P. 6, 36. A.L.R. 1132; 2 Berry on Automobiles (6 Ed.), 1492, page 1244.

There being a conflict in the evidence with reference to young Maley operating the car with the consent or acquiescence of his parents, appellant was entitled to have the case submitted to the jury under appropriate instructions.

Grier v. Woodside et al., 158 S.E. 491, 492.

An owner must use exceeding care in the selection of a competent chauffeur and cannot exempt himself from liability by testifying that he did not actually know of the incompetency of the chauffeur when he did not take the necessary precautions to ascertain the competency or incompetency of him.

Northern Pacific Railroad Co. v. Richard Mares, 123 U.S. 710, 31 L.Ed. 296.

It is well settled in all jurisdictions that the reputation of the employee is receivable to show that the employee's character, in respect to competency, was known to the employer.

1 Wigmore on Evidence, section 249; Railroad Company v. Hare, 104 Miss. 564, 61 So. 648.

Although the instructions say "reckless and careless" conjunctively, the jury were told that a driver who was reckless and careless was indifferent to consequences. If he was indifferent to consequences he certainly was dangerous. We submit that if a person is reckless in the driving of an automobile, or even though he might be careless, that he is a "dangerous driver."

Argued orally by Forrest B. Jackson, for appellant, and by Pat Eager, for appellee.

OPINION

Ethridge, P. J.

This case was here on a former appeal, was considered by the court in banc, and four separate opinions written, in which a majority of the court held that there was liability against both Mr. and Mrs. Maley if certain propositions therein discussed were established, and that there was sufficient evidence to go to the jury to prevent the giving of a peremptory instruction for the Maleys. 159 Miss. 538, 132 So. 541. On that trial the circuit judge held there was no liability against either Mr. or Mrs. Maley, and granted a peremptory instruction in their favor, from which an appeal was granted.

None of the instructions given for the plaintiff were brought under review in that appeal, and the question as to whether the proof was sufficient to require the court to set aside the verdict as to either Mr. or Mrs. Maley because the weight of the evidence greatly preponderated in favor of the defendant was not before the court.

On this appeal there are numerous assignments of error, but we do not deem it necessary to notice most of them. One of the errors assigned is the giving of instruction No. 1 for the plaintiff, which reads as follows:

"The court instructs the jury on behalf of the plaintiff that the fact that neither of the defendants had actual knowledge of the use of the automobile by Dick Maley at the time of the accident, and the fact that they may not have had actual knowledge of the fact that said Dick Maley was a reckless and careless driver of an automobile before the date of the injuries to the plaintiff is not controlling in this case and should not affect your consideration of the case in bringing in verdict for plaintiff, if you further believe from a preponderance of the evidence that the said Dick Maley was a reckless and careless driver of an automobile before and at the date of plaintiff's injuries, and that the said defendants should have known of such fact by the exercise of reasonable diligence on their part, and said defendants should have known of the fact that said car was in the possession of their said minor son at the time of the accident by the exercise of ordinary care on their part, and...