Slaughter v. Holsomback

• Decision Date: 03 April 1933
• Docket Number: 30520
• Citation: 166 Miss. 643,147 So. 318
• Court: Mississippi Supreme Court
• Parties: SLAUGHTER v. HOLSOMBACK

147 So. 318

166 Miss. 643

SLAUGHTER v. HOLSOMBACK

No. 30520

Supreme Court of Mississippi

April 3, 1933

Division A

Suggestion Of Error Overruled May 29, 1933.

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

Action by Pansy May Holsomback, by next friend, against Mrs. Mackie Slaughter. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Gilbert & Cameron and Dunn & Snow, all of Meridian, for appellant.

No permission was given by the appellant for Albert Slaughter to drive the car on the trip and on the occasion of the accident, or to do so at any other time or on any other occasion. The only consent or permission granted by appellant was that her chauffeur might use the car in carrying Albert from her home, located in the northern portion of the city, down town, and this consent or permission was coupled with her direct command to the chauffeur to return immediately to her home with the car. To say that the circumstances mentioned constituted a consent or permission expressed or implied for Albert Slaughter to drive or handle the car would do violence to the commonest understanding and intelligence of mankind.

Presumptions must give way to proven facts, especially where, as in this case, the testimony as to such facts is undisputed. That Albert Slaughter was driving the car without the permission or consent or knowledge of the appellant, and was at the time engaged in or about no business of the appellant was clearly proven by testimony introduced by the appellee herself, and is undisputed.

2 Blashfield's Cyclopedia of Automobile Law, chapter 46, page 1646.

Whether the chauffeur out of respect or fear or what not surrendered the driving of the car to Albert Slaughter, and without protest makes no difference, as a matter of law, in this case. Such action on the part of the chauffeur was clearly beyond and outside the scope of his authority as disclosed by the undisputed facts in evidence, such act being without the scope of his authority, but contrary thereto, the appellant is not bound thereby.

Canton Cotton Warehouse Co. 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 Co. v. Crowley, 121 Miss. 262; Walters v. Stonewall Cotton Mills, 136 Miss. 101; Natchez Railroad v. Boyd, 141 Miss. 593; Alden Mills v. Pendergraft, 141 Miss. 595; Wells v. Robinson Motor Co., 153 Miss. 559; Primos v. Gulfport Laundry Co., 157 Miss. 770; Craft v. Magnolia Stores, 161 Miss. 736; Western Union Telegraph Co. v. Stacy, 162 Miss. 286; Vicksburg Gas Co. 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. (Mo. App.), 211 S.W. 95; Eason v. Joy Floral Co., 130 S.E. 352, 34 Ga.App. 501; Permutter v. Byrne, 184 N.Y.S. 580, 193 A.D. 769; Adomaities v. Hopkins, 11 A. 178, 95 Conn. 239; Hannis v. Driver, 68 Pa. S.Ct. 548; Lee v. Nathan, 226 P. 970, 67 Cal.App. 11; Archie v. Hudson-Essex Co., 120 App. 162, 45 R. I. 109.

Even though a servant may be pursuing his general employment, if he steps aside therefrom and does an act which he has been forbidden to do, or an act without the scope of his employment and not in furtherance of the master's business, the master cannot be held for his acts of negligence or wrongs committed in the court of such departures.

McCoy v. McKooven, 26 Miss. 487; N. O. J. & G. R. R. Co. v. Harrison, 48 Miss. 112; Yazoo & M. V. R. Co. v. Stansberry, 53 So. 389; Shell Petroleum Corp. v. Kennedy, 141 So. 335.

Reily & Parker, of Meridian, for appellee.

Upon the proof we contend that this record justified the jury in finding that the son, Albert L. Slaughter, was an habitual drunkard and an incompetent driver of an automobile, and that he was under the influence of intoxicating liquors when he injured the plaintiff, and that such intoxication was a proximate cause of her injury, and that the appellant, owner of such automobile, either in person or through her servant, negligently intrusted the said automobile to the driving of the said incompetent driver, under such circumstances as to make the owner of the automobile liable.

It is commonly known that one who is most competent and careful as an operator of an automobile when perfectly sober becomes incompetent and reckless after indulgence in one or two drinks. So unfailingly is this true, that one who is given to drinking intoxicating liquor must be regarded as an unsafe and potentially incompetent and dangerous driver, and the owner of an automobile who knows of such habits and intrusts it to such a driver may be liable for injuries to third persons which follow.

Crowell v. Duncan, 50 A.L.R. 1425; Bailey on Personal Injuries, "Master & Servant," (2 Ed.), page 890; Mitchell v. Churches, 36 A.L.R. 1132; Section 5579, Code of 1930.

The act of the servant, under the circumstances revealed by this record, in permitting the incompetent driver to drive the said automobile, was of the same and legal effect as if the owner thereof had consented thereto in person.

Chapman v. Powers, 116 So. 609.

Although there is contrary authority, the owner of a motor vehicle is ordinarily held liable for the negligence of one who is not in his employ, but who is driving his car with the knowledge and consent and in the presence of agent or employee and upon his business, although the agent or employee has no authority to engage an assistant, or to permit another to drive, and even though he has been ordered not to permit others to drive the car.

42 C. J. 1096; Slothower v. Clark, 179 S.W. 55; Thixton v. Palmer, 44 A.L.R. 1379; Elliott v. Harding, 36 A.L.R. 1128; Grant v. Knepfer, 54 A.L.R. 845; Geiss v. Twin City Taxicab Co., 45 L.R.A. (N.S.) 382.

Where a servant employed to drive such car directs or permits a stranger to operate such car in the master's business, and in the presence of the servant, the master may be held liable for its negligent operation upon the ground that such operation was, in fact, the servant's operation.

Ulman v. Linderman, 10 A.L.R. 1440; Taylor v. Stewart, 90 S.W. 134; Prince v. Taylor, 171 S.W. 826.

Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same, on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine.

Berry on Automobiles (3 Ed.), para. 1040; Anderson v. Daniel, 101 So. 498; Moon v. Matthews, 29 L.R.A. (N.S.) 856; Huddy on Automobiles (6 Ed.), p. 867; Stumpf v. Montgomery, 32 A.L.R. 1490; Crowell v. Duncan, 50 A.L.R. 1425; Barmore v. Vicksburg, S. & P. Ry. Co., 38 So. 210.

R. M. Bourdeaux, of Meridian, for appellee.

This is not a case where it is sought to hold the parent for the tort of the child. This is a case though where it is sought to hold the master for the negligence of the servant.

We submit that the jury was warranted in finding that Mrs. Slaughter was negligent in turning the automobile over to a young negro and her drunken son. She should have anticipated that the negro driver would yield to the demand of her drunken son and surrender the car to him and that turning the car over to the negro and her son was in itself tantamount to turning the car over to her son.

While acting strictly within the scope of employment and while acting on a mission for Mrs. Slaughter and while about her business, this negro chauffeur turned the car over to the drunken son. He turned the car over to young Slaughter before they left for town, and therefore, there can be no dispute and no argument whatsoever but that the negro chauffeur was acting within the scope of his employment when he turned the car over to the drunken young Slaughter before they left for town.

American Law Institute, Restatement Law of Torts (tentative draft No. 5), section 260.

We submit that it is no defense by a master to offer proof that a servant violated instructions. If a master could escape liability by showing his instructions to the servant, then there would be no such thing as ever holding the master liable. The doctrine of respondeat superior would be entirely abrogated and in every action of negligence the master could merely say that he instructed the servant to be careful and thereby escape liability.

Argued orally by Ben F. Cameron, for appellant, and R. M. Bourdeaux, for appellee.

OPINION

McGowen, J.

Appeal is prosecuted here by Mrs. Mackie Slaughter from a judgment of the circuit court of Lauderdale county rendered against her for a substantial sum for personal injuries sustained by Pansy May Holsomback, a minor of tender years. There was also a suit against Albert Slaughter, the son of appellant, and verdict and judgment against him, from which no appeal is prosecuted.

The appellee was injured seriously and permanently by an automobile while she was seated with other small children on some steps leading from the sidewalk up to a yard of a private residence. The car was driven by Albert Slaughter, the son of Mrs. Mackie Slaughter. The latter owned the car.

At about twelve thirty on day of the injury, Albert Slaughter who for the most part lived with his mother, telephoned his mother requesting her to send her car with her chauffeur to bring him to lunch. She complied with that request. The car was sent to the store in the city of Meridian where Albert Slaughter was, and he was transported in his mother's car to her residence, where he had lunch. About one P. M. he requested his mother to allow the chauffeur to carry him to...