McLaurin v. McLaurin Furniture Co.

• Decision Date: 20 February 1933
• Docket Number: 30448
• Citation: 146 So. 877,166 Miss. 180
• Court: Mississippi Supreme Court
• Parties: MCLAURIN v. MCLAURIN FURNITURE CO

146 So. 877

166 Miss. 180

MCLAURIN v. MCLAURIN FURNITURE CO

No. 30448

Supreme Court of Mississippi

February 20, 1933

Division A

1 AUTOMOBILES.

One driving automobile at more than ten miles an hour at night without lights was prima-facie negligent (Code 1930, sections 5581, 5588).

2 AUTOMOBILES.

Servant who drove on employer's business to certain town, and then drove to another place for pleasure of himself and wife re-entered employment when returning home from first town as regards employer's liability to wife sustaining injury in accident.

3. NEGLIGENCE.

Negligence of driver in driving at night without lights could not be imputed to his wife sitting in back seat and protesting against such driving.

4. HUSBAND AND WIFE.

Neither wife nor husband may sue the other for personal tort.

5. MASTER AND SERVANT.

Where servant's tortious act injuring his wife is act of master, master is liable proximately, even though wife could not sue husband, servant.

6. AUTOMOBILES.

Where servant's wife went on business trip with servant for her own pleasure, master held not liable for injuries caused by servant's negligence.

7. AUTOMOBILES.

So far as wife, injured while riding with husband on business trip, was concerned, husband was not alter ego of corporation of which he was employee and official.

HON. J. D. FATHEREE, Judge.

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

Action by Mrs. Leslie S. McLaurin against the McLaurin Furniture Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

A wife may not maintain a suit against, her husband for personal injuries resulting from his negligence.

The wife may sue a corporation of which her husband is an employee and officer and agent, and recover of the corporation, damages for a tort committed against her by the corporation, even though that tort resulted from the negligence of her husband.

Peelman v. Brooklyn, 191 N.Y.S. 891, 194 N.Y.S. 971; Schubert v. August Schubert Wagon Co., 228 N.Y.S. 604.

An employer and employee may be jointly liable, no, matter whether or not the employer participated in the employee's wrongful act.

Weaver v. Hale, 89 So. 363; Stinson v. Prevatt, 94 So. 656; Sections 2027, 2028, Code of 1930; Saint Louis & San Francisco, Railroad Company v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.) 352.

It is not true in Mississippi that the master is never liable when sued with his servant for acts done by the servant in the course of his employment, unless the servant is also, liable.

Illinois Central Railway Company v. Clarke, 85 Miss. 691, 38 So. 97; Nelson v. Illinois Central Railway Company, 98 Miss. 295, 53 So. 619; Yazoo & Mississippi Valley Railroad Company v. Hardy, 100 Miss. 132, 55 So. 42, 34 L.R.A. (N.S.) 740; Estes v. Memphis & Charleston Railroad Company, 152 Miss. 814, 119 So. 199; Star Brewery v. Hauck, 113 Am. St. Rep. 420, 78 N.E. 827.

Where a plaintiff, sustained injuries through negligence of defendant's servant or agent, plaintiff's subsequent marriage to the servant or agent abates right of action against him but not against principal.

Webster v. Snyder, 138 So. 755.

Appellant was on the back seat, sitting in the center of the seat, and looking ahead and did all any ordinarily prudent wife could or would have done about the matter of the driving in the dark, and was not guilty of negligence herself.

2 Cyc. of Automobile Law, section 5, page 1095; Ward v. Clark, 179 N.Y.S. 466, 189 A.D. 344.

Appellant was not a trespasser under the facts. She was not merely the guest of H. A. McLaurin. She was in the automobile to the knowledge of, and by the express consent of, and pursuant to the invitation of, appellee.

1 Cyc. of Automobile Law, pages 972, 973, secs. 15, 16; McKee v. Birmingham News Company, 90 So. 492; Walker v. Fuller, 112 N.E. 230; Paidrowsky v. Jaffe, 40 A.L.R. 1335; Wartzburger v. Oglesby, 131 So. 9; Kartel v. Steiber, 297 P. 932; Charnon v. Williams, 156 A. 154; Galloway v. Perkins, 198 Ala. 658, 73 So. 936.

Evidence that a truck driver, at the time of causing an accident by the negligent operation of his truck, was returning from an errand for his employer and on his way to the garage, was sufficient to show that he was acting within the scope of his employment.

Regan v. Kelly Construction Company, 114 N.E. 726, 226 Mass. 58; Bauer & Brother v. Eastin, 227 S.W. 578; Studebaker Brothers Company v. Kitts, 152 S.W. 464; Thomas v. Armistage, 196 N.W. 735, 111 Minn. 238, Cyc. of Automobile Law, page 1370, sec. 5; Co-operative Furniture Company v. Southern Surety Company, 264 S.W. 201.

The general rule is that where an employee is returning from work with the consent and by authority of the employer, in a vehicle owned by the employer, he is acting within the scope of his authority.

Silent Automatic Sales Corporation v. Stayton, 45 F.2d 471; Sylox v. National Lead Company, 38 S.W.2d 497; Phifers Dependents v. Fremont Dairy, Inc., 156 S.E. 147, 200 N.C. 65; Schmidt v. American Press Company, 42 S.W.2d 969; Scriven v. Franklin, 293 P. 666; Dayton Biscuit Company v. Aerni, 177 N.E. 775, 40 Ohio App. 49; Huddy on Automobiles (7 Ed.), sec. 753, page 819; Edwards v. Earnest, 206 Ala. 1, 89 So. 729; 94 So. 598; Rooks v. Swift, 98 So. 16; Deonie v. Ward Baking Company, 188 Ill.App. 588; Graham v. Henderson, 254 Pa. St. 137, 98 A. 870; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Primos v. Gulfport Laundry & Cleaning Company, 157 Miss. 770, 128 So. 507.

The responsibility of the master for the acts of the servant "attached immediately upon his having accomplished the errand on behalf of his friend and when he started to return to his duty to gather kindling."

Barmore v. Railway Company, 85 Miss. 426.

Dunn & Snow, of Meridian, for appellee.

To hold the master liable for the negligent acts of the servant such acts must have been committed while the servant was acting within the scope of his employment and in furtherance of the master's business.

Canton Cotton Warehouse Company v. Poole, 78 Miss. 147; Barmore v. Railroad Company, 85, Miss. 426; Hines v. Cole, 123 Miss. 254; Woods v. Franklin, 118 So. 450; Indianola Cotton Oil Company v. Crowley, 121 Miss. 262; Walters v. Stonewall Cotton Mills, 136, Miss. 101; Natchez Railroad v. Boyd, 141 Miss. 593; Allen Mills v. Pendergraft, 141 Miss. 595; Wells v. Robinson Motor Company, 153 Miss. 559; Primos v. Gulfport Laundry Company, 157 Miss. 770; Craft. v. Magnolia Stores, 161 Miss. 756; Western Union Telegraph Company v. Stacy, 162 Miss. 286; Vicksburg Gas Company v. Ferguson, 106 So. 258; Stegman v. Sturtevant & Haley Beef & Supply Co., 137 N.E. 363, 243 Mass. 269; Vallery v. Hesse Bldg. Material Co., 211. S.W. 95.

Although the general rule is that a guest in an automobile is not chargeable with the negligence of his host, it is also true that the facts and circumstances may be such that the negligence of the host may become the negligence of the guest.

Chapman v. Powers, 116 So. 609.

A wife may not maintain a suit against her husband for personal injuries resulting from his negligence.

Austin v. Austin, 136 Miss. 61.

The wife was barred from maintaining a suit against a third person for damages sustained on account of the negligence of her own husband.

Maine v. James Maine & Sons Company, 201 N.W. 20, 37 A.L.R. 161; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Phillips v. Barnett, L. R. I. W. B. Div. 436.

Unless the servant is liable, there can be no liability on the part of the master.

White v. International Textbook Co., 150 Iowa 27, 129 N.W. 338; Dunshee v. Standard Oil Co., 165 Iowa 627, 146 N.W. 830; Hobbs v. Illinois C. H. Co., 171 Iowa 624, L.R.A. 1917E, 1923, 152 N.W. 40; Arnett v. Illinois C. R. Co., 188 Iowa 540, 176 N.W. 322.

One associated with the husband as a joint tortfeasor in the infliction of a personal injury upon the wife cannot be held liable to her.

Abbott v. Abbott, 67 Miss. 304; Libby v. Berry, 74 Me. 286, 43 Rep. 589; Emerson v. Western Seed Co., 56 A.L.R. 327.

The primary liability to answer for such an act, rests upon the employee, and when the employer is compelled to answer in damages therefor he can recover over against the employee.

Doremus v. Root, 23 Wash. 710, 54 L.R.A. 649; 18 R. C. L. 502, sec. 13.

Argued orally by R. E. Wilbourne, Jr., for appellant.

OPINION

McGowen, J.

By her declaration and proof, Mrs. Leslie S. McLaurin, the appellant, sought to recover damages for personal injuries received by her as the result of the wrecking of an automobile which belonged to the appellee. The evidence, on the occasion of the wreck, established the negligence of the automobile driver, the husband of the appellant, and it was sought to be shown that the furniture company, as master of the servant, the husband of the appellant, was liable. The court below granted a peremptory instruction on the evidence adduced by the appellant, and a verdict and judgment was entered accordingly.

McLaurin Furniture Company the appellee, was a corporation engaged in the furniture business at Meridian, Miss., of which W. A. McLaurin was the president and general manager, and H. A. McLaurin, appellant's husband, the secretary and treasurer. Both were stockholders.

Appellee furnished H. A. McLaurin a car, to be used by him in performing his duties as an employee of the company in making collections on furniture sold and repossessing merchandise which was not paid for, kept the same in repair, and paid the gasoline bill therefor. He had full charge of the car, kept it at his home in a garage, and was permitted to use it at will for the pleasure of himself and his family when it was not...