Mcfadden v. Anderson Motor Co

• Decision Date: 20 October 1922
• Docket Number: (No. 11041.)
• Citation: 114 S.E. 402
• Court: South Carolina Supreme Court
• Parties: McFADDEN. v. ANDERSON MOTOR CO.

114 S.E. 402

McFADDEN.

v.ANDERSON MOTOR CO.

(No. 11041.)

Supreme Court of South Carolina.

Oct. 20, 1922.

Gary, C. J., dissenting.

Appeal from Common Pleas Circuit Court of York County; H. F. Rice, Judge.

Action by Aline McFadden against the Anderson Motor Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

McDonald & McDonald, of Winnsboro, and Wilson & Wilson, of Rock Hill, for appellant.

J. Harry Foster, of Rock Hill, and Thomas F. McDow, of York, for respondent.

COTHRAN, J. This is the second appeal in this case, a general statement of the facts in which will be found in the former appeal, 118 S. C. 309, 108 S. E. 919. Upon the second trial the plaintiff recovered a judgment for $2,000, from which the defendant appeals.

It is necessary to consider only the fifth exception, which is as follows:

"Because his honor erred in charging the jury as follows: 'Now, as to whether or not, gentlemen, after knowledge of all the facts in the case, they ratified his taking the car out and using it—not ratified running over the child, because they couldn't do that; that was an unlawful thing to do, and they can't ratify any unlawful act—but 1 say, so far as his using the car was concerned, if after full knowledge of all those facts, they ratified it by acts of their's, keeping him in their employ or otherwise dealing with him so as to ratify what he has done, then their authority would go back to the time when he first took the car out of the shop or the place, and then it would be the same as if they originally gave him permission, or if he was on their business. That is my view of the law. It may be wrong; but from the authority which has been handed me up here, I can't see any other view of the law, and am going to charge you that. If I am wrong the Supreme Court, in case it goes against the defendant in this case, will correct me'; the error being:

"(a) That such charge did not state a sound and correct proposition of law, and was prejudicial to the defendant.

"(b) Because such charge in effect instructed the jury that if the driver of the car, Frank Hull, was not acting in the scope of his agency or employment at the time of the accident to plaintiff, the mere keeping of said Frank Hull in the employment of the defendant would ratify his act and make the defendant liable for plaintiff's injuries, even although defendant had full knowledge of all the circumstances of the accident, but knew that said Frank Hull was not at that time acting in the scope of his employment.

"(c) Because if Frank Hull was not acting in the scope of his employment at the time of said accident, the mere keeping of him in their employment could not ratify his act of taking out the car and make the defendant liable for plaintiff's injuries, for the reason that there could be no liability on the defendant at the time said accident occurred, and there would be no legal duty upon defendant to discharge the said Frank Hull, when he was acting out of his scope of employment with defendant."

The liability of the master for the torts of his servant arises only when the servant is acting about the master's business, within the scope of his employment; if he is upon his own business acting outside of his employment the master is not liable.

The defendant, while admitting the ownership of the ear and the employment of Frank Hull, who was operating the car at the time of the collision, contended that he was not at the time engaged about their business, but about his own. The circuit judge properly charged the jury that under such circumstances the defendant would not be liable unless it ratified the act of Hull in using the car, not in striking the child; and that the retention of Hull in its employment after knowledge of all the facts was not only evidence of ratification, but was ratification, "It would be the same as if they originally gave him permission, or if he was on their business."

A quotation from the case of Knight v. Motor Co., 108 S. C. 179, 93 S. E. 869, L. R. A. 1918B, 151, is sufficient to demonstrate the fallacy of this declaration:

"Therefore, even if the retention of Boyd tended to prove that the motor company approved his conduct, yet the simple approval of the unlawful conduct of another about the other's own business, after it shall have happened, will not render the approver liable for the unlawful conduct of the other."

The case referred to was one of very similar character, the use of a car by an employee for his own pleasure and on his own business.

The judgment of this court is that the judgment of the circuit court be reversed, and the case remanded to that court for a new trial.

MARION, J., concurs.

FRASER, J. [3] I concur in the result on the ground that the retention of the driver was only evidence from which ratification might be inferred, and not ratification as a matter of law.

Statement of Facts.

GARY, C. J. (dissenting). This is an action for damages alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant. This is the second trial of the case. On the first trial, his honor the presiding judge granted a nonsuit, on motion of the, defendant's attorneys at the close of all the testimony. The order of nonsuit was reversed by the Supreme Court, and upon the second trial the jury rendered a verdict in favor of the plaintiff for $2,000, and the defendant appealed.

The complaint is as follows:

(1) That the defendant now is, and was, at the times hereinafter stated, a corporation created and existing under the laws of said state;

(2) That Allie McFadden was duly appointed the guardian ad litem for the plaintiff herein, the said plaintiff being an infant under the age of nine years;

(3) That on or about February 18, 1919, in the city of Rock Hill, on East Main street, within the fire limits of said city, the agent of the defendant, acting within the course of his employment, negligently and willfully so operated an automobile, being then driven by said agent and servant of the defendant, as to run said car over the plaintiff; said injury having occurred at or about.8:30 a. m., at a time when the said street was being used by many children, including the plaintiff, while going to the public schools of said city, all of which was known or apparent to the defendant, its agents and servants.

(4) That by reason of the said injury to the plaintiff, that said plaintiff was seriously and permanently bruised and crushed, having her thigh broken and other parts of her body permanently injured, to the plaintiff's damage in the sum of $20,000.

(5) That the defendant, its agents and servants, were negligent and unlawful, in the following additional respects: (a) That the driver of said automobile was incompetent and was not licensed to operate a ear in the limits of the city of Rock Hill, and was operating said car in violation of a valid city ordinance. (b) That the driver of said car did not keep to the right of the center of the road, in violation of the road law of South Carolina, and in violation of a valid city ordinance. (c) That said car was equipped with an inadequate set of brakes, in violation of a valid ordinance of the city of Rock Hill. (d) That said car was being run at a high and dangerous rate of speed, exceeding 25 miles the hour, in violation of the road law of South Carolina. (e) That said car was being driven at a greater rate of speed than was reasonable and proper under the circumstances, and at a greater rate of speed than 10 miles the hour on said East Main street, said street being within the fire limits, all of which was in violation of a valid ordinance of said city of Rock Hill. (f) That the agents and servants of the defendant did not so operate said car, as to retain control of the same, whereby said car could have been stopped and said injury avoided. (g) That the agent and servant of the defendant did not, at said time and place, give any warning of its approach or presence, nor did said agent keep a proper and due lookout, whereby the presence of perilous situation of the said plaintiff may have been discovered and said accident avoided. (h) In allowing and permitting said car to be driven by an incompetent and unlicensed driver, in violation of law.

(6) That the injuries to the plaintiff, were due to one another, or all of said acts of negligence and willfulness operating jointly, concurrently, or...