Roy v. Hammett Motors, Inc

• Decision Date: 02 January 1940
• Docket Number: 33935
• Citation: 192 So. 570,187 Miss. 362
• Court: Mississippi Supreme Court
• Parties: ROY v. HAMMETT MOTORS, INC

192 So. 570

187 Miss. 362

ROY v. HAMMETT MOTORS, INC

No. 33935

Supreme Court of Mississippi, Division A

January 2, 1940

Suggestion Of Error Overruled February 12, 1940.

APPEAL from the circuit court of Harrison county HON. L. C. CORBAN Judge.

Action by A. W. Roy against the Hammett Motors, Incorporated, for injuries to plaintiff and damages to his automobile because of a collision with defendant's automobile. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Eaton &amp Eaton, of Gulfport, for appellant.

Appellant insists that Watts, who was the servant of appellee, was acting in furtherance of the master's business in turning the car over to the Colemans, even if it be taken as a fact that he had instructions to go with them. Furthermore, if he had such instructions and violated them, he was guilty of negligence, and if this negligence was the proximate cause of appellant's damages appellee would be liable.

Slaughter v. Holsomback, 147 So. 318, 166 Miss. 643.

Unquestionably if Watts had been in the car when Hosea Coleman was driving across the street intersection at 60 miles an hour and crashed into Mr. Roy, appellee would be liable. The Slaughter case settles that. But, it is argued, if Watts, instead of being in the car with Coleman, where he might have exercised some restraint upon his driving, negligently absents himself and thus renders it impossible for any restraint to exist, there is no liability. For Watts wholly to absent himself from any possibility of control of the driver is certainly a greater degree of negligence than would have been his failure to control the operation of the car if he had been present. So appellee is reduced to the utterly untenable position that a greater degree of negligence is an immunity, where a less degree, leading to the same result as the greater, is a liability.

Whether Watts' negligence was the proximate cause of appellant's injury was certainly a question for the jury if it does not affirmatively so appear as a matter of law. Most assuredly if a servant, when present, by negligently failing to control a reckless driver to whom he has turned over the wheel, renders the master liable, it follows that if a servant negligently fails to exercise the same character of control by absenting himself, the master is also liable.

The Slaughter case also disposes of the question whether Watts was acting in the furtherance of the master's business. Bo Hicks, Mrs. Slaughter's chauffeur, was directed to drive her son to town. Mrs. Slaughter was simply accomodating her son, and Hicks was the servant through whom the accomodation was to be rendered. But Watts was endeavoring to sell for the master a car the master wanted sold. Obviously, the master would have benefited from the sale. The court said in respect to Mrs. Slaughter and Bo Hicks: "The doctrine of respondeat superior is that he who acts through another is himself the actor. Mrs. Slaughter was the master. Hicks, the chauffeur, was the servant. The master's business was to transport the son to a destination in the town of Meridian selected by him." Here the master's business was the sale of cars, and Watts was the instrumentality through which the sale was to be made.

If appellant's contention be sustained, the driver of a truck or bus who had been directed to do all the driving could abandon it, call someone else to drive it, and there would be no liability for negligent driving.

The Slaughter case seems to settle the legal questions presented here, but a few more decisions may prove helpful.

So. Bell T. & T. Co. v. Quick, 149 So. 107, 167 Miss. 438; Winn v. Holiday, 69 So. 685, 109 Miss. 691; Primos v. Gulfport Laundry & Cleaning Co., 128 So. 507, 157 Miss. 770; Restatement of the Laws, Sec. 241, subject "Agency."

Leathers, Wallace & Greaves, of Gulfport, for appellee.

Owner is not liable for negligence of prospective purchaser, or his representative, when driving automobile to ascertain for himself how it runs, when not accompanied by owner or his agent, in the absence of the element of known incompetency of driver.

Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Cruse-Crawford Mfg. Co. v. Rucker (Ala.), 123 So. 897; Emery v. McCombs, 167 N.Y.S. 474; Flaherty v. Helfont, 123 Me. 134, 122 A. 180; Goodrich v. Musgrave Fence & Auto Co., 154 Iowa 637, 135, N.W. 58; Graham v. American Employers' Ins. Co., etc. (La.), 171 So. 471, 177 So. 830; Huddy Enc. of Auto. Law, Vols. 7-8, pp. 278-280; Massony et al. v. Truett Nash Motor Co., Inc. (La.), 177 So. 829; Sharples v. Watson, 157 Miss. 239, 127 So. 779; 2 Blashfield Enc. of Auto. Law, pp. 1320-1322; 2 Berry on Automobiles (6 Ed.), p. 1200; 2 C. J. S. 1027.

Under Mississippi law an automobile is not a dangerous instrumentality per se.

Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770, 128 So. 507; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Woods v. Clements, 113 Miss. 720, 74 So. 422, 75 So. 119.

Doctrine of respondeat superior rests upon contractual relations of principal and agent or master and servant, and principal or master liable only for negligent acts of agent or servant committed while acting within scope of employment, and in furtherance of the business of principal or master.

Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Woods v. Clements, 113 Miss. 720, 74 So. 422, 75 So. 119.

Relations of principal and agent and/or master and servant arise out of contract, express or implied.

Gulfport & Mississippi Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.

Right of principal and/or master to control services of agent and/or servant is essential to the relation of principal and agent and/or master and servant.

Cook v. Wright, 177 Miss. 644, 171 So. 686; 2 C. J. S. 1027; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 74 Miss. 737, 165. So. 546.

Authority of agent and/or servant to bind principal and/or master rests upon powers conferred by principal and/or master.

Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Dahnke-Walker Milling Co. v. T. J. Phillips & Sons, 117 Miss. 204, 78 So. 6; Gulfport & Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340.

Appellee's salesman was not acting within scope of employment and in furtherance of appellee's business in delivery of automobile to Reverend Charles Coleman, in view of instructions given him by appellee not to do so.

Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Dahnke-Walker Milling Co. v. T. J. Phillips & Sons, 117 Miss. 204, 79 So. 6; Gulfport & Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340.

Even if appellee's salesman was acting within scope of employment and in furtherance of appellee's business in the delivery of the automobile to Reverend Charles Coleman, neither relation of principal and agent nor master and servant are thereby created between appellee and Reverend Charles Coleman, or his son George, or his son Hosea, who was driving automobile at time of accident.

Cook v. Wright, 177 Miss. 644, 171 So. 686; Gulfport & Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.

No right of control of use of automobile by Reverend Charles Coleman, or his son George, or his son Hosea, having been reserved by appellee, and there being no showing that either one of them was a known incompetent driver, appellee is not liable to the appellant.

Delivery of appellee's automobile to Reverend Charles Coleman by appellee's salesman amounted to no more than an unauthorized lending of it, which cannot create liability on appellee, absence showing that either Reverend Charles Coleman, his son George, or his son Hosea was a known incompetent person to have control over automobile.

Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Culpepper v. Holmes, 170 Miss. 239, 154 So. 726; Sharples v. Watson, 157 Miss. 239, 127 So. 779; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258.

Argued orally by B. E. Eaton, for appellant, and by P. D. Greaves, for appellee.

OPINION

Griffith, J.

Appellee is a dealer in automobiles, including used cars. Watts was a salesman in appellee's employ. Watts had sought to induce one Charles Coleman to purchase a certain second-hand Dodge sedan, and Coleman had personally tested the car but found it unsatisfactory. Appellee thereupon made some repairs or improvements upon the vehicle and shortly thereafter, on February 8, 1939, Watts took it to the home of Coleman in the effort to renew the negotiations for its sale to Coleman. The latter stated that he was busy at that time and could not give any present attention to the matter and stated, moreover, that he was no longer interested as a prospective purchaser; but as to this, appellant says in his brief that "Charles Coleman's testimony shows that he was interested in buying the car but that, as a shrewd buyer, he was assuming an indifferent attitude that Watts however well understood."

Watts so understanding, suggested that one of Coleman's sons drive Watts and the car back to appellee's place of business, and that thereupon the son would return the car to Coleman's home, and that then Coleman's two sons, one or both, if Coleman chose not to do so, should test or try out the car. Coleman stated in response to this suggestion...