Saxton v. Rose
| Citation | 201 Miss. 814,29 So.2d 646 |
| Decision Date | 24 March 1947 |
| Docket Number | 36379. |
| Court | United States State Supreme Court of Mississippi |
| Parties | SAXTON et al. v. ROSE et al. |
Henry & Barbour, of Yazoo City, for appellants.
Butler & Snow, of Jackson, and J. G. Holmes of Yazoo City, for appellees.
Steve Saxton was killed in the wreck of a truck between Tchula and Yazoo City on August 22, 1945. The truck was owned by appellee Rose and driven by appellee Eldridge. The widow of the deceased brought suit against them both for herself and her two daughters, as their next friend, she and they being the sole heirs-at-law of Steve Saxton.
The declaration charged negligence of appellees in two counts, as the proximate cause of the death of their deceased. The first count charged that appellee Eldridge, with the permission of appellee Rose, had been customarily allowing other persons to ride on the truck with him, and that on this particular occasion 'while the said Eldridge was in a state of intoxication to the extent that rendered him incompetent to safely operate said truck; while so situated defendant Eldridge in a grossly negligent and careless manner ran said truck off the highway, being Highway 49-E, at a point north of Yazoo City at a time when said highway was unobstructed and straight and built on an embankment, causing said truck to overturn and producing injuries to plaintiffs intestate which caused his death.' It was further charged that Saxton was riding with appellee Eldridge as a guest, and that the truck was then and there being operated in and about the business of the master, Rose, by his agent and servant Eldridge.
The second count was based on the alleged negligence of appellee Rose in hiring and permitting the appellee Eldridge to operate for him, and in his business such a dangerous agency as a truck, when Rose knew, or ought to have known, that 'he habitually became intoxicated and rendered himself unfit to operate said truck by reason of said intoxication.' It was alleged that such negligent employment resulted in the death of deceased, as Eldridge was driving this truck while he was in a drunken condition, at the time deceased met his death.
All of this was denied by a plea of the general issue and notice thereunder, 'under all of the circumstances said decedent assumed all the risks incident to riding in the truck on said trip and at the time and place of the accident.' Appellants went to great pains to prove by numerous witnesses that appellee Eldridge was drunk on this occasion. He alone specifically denied it, but appellant, without rebuttal, also overwhelmingly impeached the credibility of Eldridge. So appellants are in no position to use his testimony as creating a conflict in the evidence, and thereby challenging the peremptory instructions granted appellees. Indeed, they do not attempt to do so. The credible evidence overwhelmingly sustains the charge that appellee, Eldridge, the driver of the truck, was, in fact, in a drunken condition when the party left Tchula, and at the scene of the wreck. He was addicted to the habit of drinking intoxicating liquors to excess at frequent intervals in his daily life. The deceased sat next to Eldridge as they left Tchula, on the crowded seat of the truck, engaged him in conversation, and is bound to have known that he was driving the truck while intoxicated. Saxton made no protest, did not leave the party upon its departure from Tchula, or offer or ask to get out of the truck before the fatal accident.
He dared to accept the hazards of the adventure, fully aware of them, and the result of his risk was his untimely death.
On the day mentioned, the appellee Rose instructed appellee, Eldridge, to drive the truck here involved from Tinsley, his headquarters, to a repair shop in Yazoo City for attention to its brakes, and when this was finished, he was to return it to Tinsley and park it. But, Eldridge, after the brakes were mended, decided to take his brother-in-law, Sims home instead. On the way out of Yazoo City, they stopped at a tavern, and there deceased induced Eldridge to drive to Tchula instead of to the home of Sims. Too, there was some intimation in the proof, that a dance at Tchula was the inducement. However, the purpose is immaterial here, under the circumstances, in view of the conclusion we have reached. In other words, decision here does not depend upon whether Eldridge was about the business of himself, or about the business of his master, Rose.
We are further of the opinion that even if it be conceded, for the sake of discussion (but which we do not decide), that appellee, Rose, was negligent in employing appellee, Eldridge, who was or should have been known to him to be an habitual drunkard, and permitted him to accept passengers in this truck designed only for use in hauling oil or water in the tank attached, appellees are not liable for the death of the deceased, Saxton, because of his own negligence in assuming the risk involved in being driven by one so drunk as to be obviously incompetent to drive.
Appellants argue that if deceased were negligent, his negligence was comparative and brought into play Section 1454, Code 1942 and cite Watson v. Holeman, 169 Miss. 585, 153 So. 669, but there the Court said: 'Appellant contends, also, that the passenger by his acts and conduct procured the servant to drive at the reckless and dangerous rate of speed, in that upon the departure on the trip the passenger had stated that he would not go except upon condition that he be speedily returned.' This Court there held that such active participation in the event by the passenger was contributory negligence, which was not a bar but 'available only by way of diminution of damages.' Here, we have no activity or participation, either in the doing or the procuring of the doing, of the alleged negligent conduct of the driver of the truck by the deceased Saxton. As stated, supra, he sat himself down on the crowded front seat of this truck, in the middle, between Eldridge at the wheel and two others, and...
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