Mooney v. Gilreath

• Citation: 117 S.E. 186,124 S.C. 1
• Decision Date: 10 April 1923
• Docket Number: 11176.
• Parties: MOONEY v. GILREATH.
• Court: United States State Supreme Court of South Carolina

117 S.E. 186

124 S.C. 1

MOONEY v. GILREATH.

No. 11176.

Supreme Court of South Carolina

April 10, 1923

Appeal from Common Pleas Circuit Court, Greenville County; R. W Memminger, Judge.

Action by W. M. Mooney against J. W. Gilreath. Judgment for plaintiff, and defendant appeals. Affirmed.

Dean Cothran & Wyche, of Greenville, for appellant.

Mauldin & Love, of Greenville, for respondent.

MARION J.

The plaintiff was struck by an automobile driven by the minor son of the defendant on one of the streets of the city of Greenville and brought this action for damages on account of personal injuries thereby inflicted. The legal liability of the defendant is predicated upon allegations that the defendant was the owner of the car, that at the time of the collision the car was negligently and recklessly driven by the son as the defendant's agent, and that defendant was guilty of negligence in placing the automobile at the disposal of his minor son to be used by him as he elected. The answer admits that "the plaintiff was struck by an automobile which belonged to defendant and which was being driven by a minor son of the defendant." On the trial the defendant moved for nonsuit at the close of plaintiff's evidence, and for a directed verdict at the close of all the evidence, substantially upon the two grounds: (1) That the evidence was susceptible of no other reasonable inference than the plaintiff's own negligence contributed to his injury as a proximate cause; and (2) that there was no evidence establishing or tending to establish that the driver of the automobile was at the time of the collision acting as agent or servant of the defendant. From judgment on verdict for plaintiff in the sum of $1,000 actual damages, the defendant appeals upon exceptions which impute error to the trial court in refusing the defendant's motions for nonsuit and for a directed verdict.

Under the well-settled rule, if upon all the evidence adduced by both parties the court was warranted in refusing the motion to direct a verdict, the error, if any, in refusing the motion for nonsuit was cured.

Broadly, therefore, the sole question is whether the circuit judge erred in refusing to direct a verdict for defendant upon either of the two grounds stated.

1. Upon the issue as to contributory negligence, there was evidence tending to establish that at the time of the collision, about 12:30 o'clock at night, the plaintiff, an employé of the city in charge of the night street cleaning force, was in the center of Pendleton street, where he had gone in the discharge of his duty to investigate an injury to one of the city's draught horses; that there were five or six men in the party; that plaintiff was "looking on the ground for blood from the wounded horse," and had his face in the direction from which the car came; that it was not dark, but he could not see "for the men in front" of him; that he was not looking for any automobile, but could have seen it "if there had been any warning of its approach." The duty of the plaintiff to keep a lookout for and yield place to passing vehicles was not an absolute duty. That, in the circumstances indicated, the court could not have held as a matter of law that the plaintiff was guilty of such contributory negligence in failing to see and get out of the way of the automobile as would bar a recovery, we think, is sufficiently clear fully to justify appellant's failure to argue this question in his printed points. The exception directed to that contention must be overruled.

2. The appellant's main contention is that there was no evidence tending to establish that the driver of the automobile was at the time of the collision an agent or servant of the defendant for whose negligence the defendant would be liable under the principle of respondeat superior. The case of Davis v. Littlefield, 97 S.C. 171, 81 S.E. 487, squarely commits this court to what is now generally called the "family purpose doctrine" in determining the liability of the owner of an automobile for an injury resulting from the negligent operation of the machine by a member of the owner's family within the scope of the purpose for which the machine is owned and kept. In that case the automobile was owned by Littefield, who had provided it for the use and comfort of his family. Randolph, his son, 19 years of age, had the permission of his father to use the car for his own pleasure at any time. On the occasion of the accident, Randolph was alone in the car, driving it to a hotel for the purpose of taking his own friends for a ride. The defendant, the father of Randolph, was held liable for damages alleged to have been caused by the automobile while thus used by Randolph; the court saying:

"The authorities cited by appellant concede that, if Randolph was driving his mother, the appellant would be responsible, and the ground of responsibility would have been that, in driving his mother, Randolph would have been in the performance of the appellant's business. If Randolph had employed a hired driver to take Randolph and his friends out for a pleasure ride, the responsibility of appellant would have been equally clear. The machine would have been used for its sole purpose; i. e., the family pleasure. The fact that the son drove himself did not in any way change the business for which the machine was used."

While the "family purpose" theory has been severely criticized by several courts of high standing as unsound in principle, it has apparently been approved and adopted by a majority of the American courts. The prevailing view is thus stated in 20 R. C. L. 629:

"Where a parent purchases an automobile for the use of his family, a child using it

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