Smith v. Dauber

• Citation: 125 So. 102,155 Miss. 694
• Decision Date: 16 December 1929
• Docket Number: 28165
• Court: United States State Supreme Court of Mississippi
• Parties: SMITH v. DAUBER

125 So. 102

155 Miss. 694

SMITH v. DAUBER

No. 28165

Supreme Court of Mississippi

December 16, 1929

Division A

1 AUTOMOBILES. Owner of automobile driven by wife was not liable for injuries inflicted, where he was not negligent in permitting wife to drive.

Owner of automobile driven by wife, who was not driving automobile for his benefit or at his express or implied request, held not liable for injuries negligently inflicted by wife in driving automobile, where he was not negligent in permitting wife to drive automobile.

2 EVIDENCE. Defendant's admission, when testifying on motion for continuance, held insufficient to support finding wife injuring plaintiff was driving automobile at his request.

In action for injuries caused by automobile, defendant's admission, when testifying in support of his motion for continuance, that his wife was going to college for him at his request when accident occurred, in light of his testimony on merits that he had made no request of his wife to come for him, and that he did not know where she was going when accident occurred, held insufficient to support finding that wife was driving automobile at his request for purpose of his own at time of accident.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county HON. J. I. STURDIVANT, Judge.

Action by Mrs. Rena Smith against Ray G. Dauber. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Magruder, Walker & Magruder, of Starkville, for appellant.

The family purpose doctrine is that where a car kept for family purposes was being used by the owner's spouse and injury resulted from its operation the owner is liable.

Hutchins v. Haffner (1917), Colo.; L.R.A. 1918A, 1008; Plasch v. Fass, 144 Minn. 44; 10 A.L.R. 1446; Ulman v. Linderman (1919), N. D.; 10 A.L.R. 1440; Vannett v. Cole (1919), N. D., 170 N.W. 663; Cohen v. Hill (Tex. Civ. App., 1926), 286 S.W. 661; Venghis v. Nathanson (N.J., 1925), 127 A. 175; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Berry on Automobile, 653; Blakemore's Babitt on Motor Vehicles (2 Ed.), 902, 903; Stowe v. Morris, 147 Ky. 386, 39 L.R.A. (N.S.) 224, 144 S.W. 52; Ploetz v. Holt, 124 Minn. 169, 144 N.W. 745; Kayser v. Van Nest, 125 Minn. 277, 51 L.R.A. (N.S.) 970, 146 N.W. 1091; McNeal v. McKain, 33 Okla. 449, 41 L.R.A. (N.S.) 775, 126 P. 742; Birch v. Abercrombie, 74 Wash. 486, 50 L.R.A. (N.S.) 59, 133 P. 1020; Smith v. Jordon, 211 Mass. 269, 97 N.E. 761; Griffin v. Russell, 144 Ga. 275, L.R.A. 1916F, 216, 87 S.E. 10, Ann. Cas. 1917D, 994; King v. Smythe, 140 Tenn. 217, L.R.A. 1918F, 293, 204 S.W. 296; Crittenden v. Murphy, 36 Cal.App. 803, 173 P. 595; Graham v. Page, 300 Ill. 40, 132 N.E. 817; Gates v. Mader, 316 Ill. 313, 147 N.E. 241; Missel v. Hayes, 86 N.J.L. 348, 91 A. 322; De Mott v. Knowlton, 100 N.J.L. 296, 126 A. 327.

The defendant below testified on his motion for continuance that at the time of the accident his wife was driving his car to the A. & M. College to bring him home, in accordance with his request and this testimony was sufficient to establish fact that the driver was the agent of the defendant.

McCoy v. Key, 123 So. 872; McCloskey Brothers v. Hook Milling Co., 80 So. 492, 119 Miss. 92.

Will E. Ward, of Starkville, for appellee.

The use of admissions as substantive proof is governed by certain fundamental principles. Chief among these principles is that which requires admissions against interest to be considered as a whole, and in the light of all circumstances under which they are made.

Mutual Benefit Life Insurance Co. v. Newton, 22 Wall (U.S.) 32, 22 L.Ed. 793.

Agency must be proven by direct and positive evidence and will not be presumed from the family relation.

Woods v. Franklin, 151 Miss. 635, 118 So. 450; Blair v. Broadwater, 121 Va. 301, 93 S.E. 632, L.R.A. 1918A 1011; McGowan v. Longwood (Mass.), 136 N.E. 72; Doran v. Thomsen (N.J.), 71 A. 296; Elms v. Flick (Ohio), 126 N.E. 66; McGoran v. Cromwell (Ind.), 156 N.E. 413; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A. 1918C, 715; Doran v. Thomsen, 76 N.J.L. 754, 71 A. 296, 19 L.R.A. (N.S.) 335, 131 Am. St. Rep. 677; Parker v. Wilson, 179 Ala. 361, 60 So. 150; Van Blaricom v. Dodgson, 220 N.Y. 111 L.R.A. 1917F, 363, 115 N.E. 443; Bretzfelder v. Damaree, 130 N.E. 505; Spence v. Fisher (Cal.), 193 P. 255; Arkin v. Page (Ill.), 123 N.E. 30; McGoran v. Longwood (Mass.), 136 N.E. 72; Elms v. Flick (Ohio), 125 N.E. 66; McFarlane v. Winters (Utah), 155 P. 437; L.R.A. 1916D, 618; Crossett v. Goelzer (Wis.), 188 N.W. 627; Loehr v. Abell (Mich.), 140 N.W. 590; Clawson v. Schroeder (Mont.), 208 P. 924; Zeeb v. Bahnmaier (Kan.), 176 P. 326; Pratt v. Cloutier, 119 Me. 203, 110 A. 353; Rackley v. Richard Dalee, a case affirmed without opinion on May 23, 1927, and being Cause No. 26502; Watkins v. Clark, 103 Kan. 629, 176 P. 131.

Argued orally by A. Magruder, for appellant, and by Will E. Ward, for appellee.

OPINION

Smith, C. J.

The appellant was struck and injured by an automobile owned by the appellee and driven by his wife, and sued the appellee for the damages alleged to have been sustained by her because of such injuries.

When the appellant rested her case, the court excluded her evidence, and directed the jury to return a verdict for the appellee.

The sole question presented for decision is the liability, vel non, of the appellee for the alleged negligence of his wife in driving the automobile.

The appellant's contentions are that the appellee is liable under the "Family Purpose Doctrine," and, if not, that a relation similar to that of master and servant existed between him and his wife, for the reason that she was driving the automobile at his request for a purpose of his own.

The evidence discloses that the automobile was owned by the appellee, and was used for general family purposes, being driven sometimes by him and sometimes by his wife. He was a football coach at the Agricultural and Mechanical College, a short distance from Starkeville, where the accident occurred, and his wife was accustomed, each day around six-thirty P. M., to come for him in the automobile and drive him home. He was at the college when the accident occurred.

The appellee, who was introduced as a witness by the appellant, stated that he had made no request of his wife to come for him, and that he did not know where she was going when the accident occurred.

Prior to the trial of the case on the merits, a motion for a continuance was made by the appellant, and, when testifying in support thereof, he was asked and answered the following questions propounded by counsel for the appellant:

"Q. Why was your wife driving the car? A. It is quite a long ways out to the college where I was coaching. She was driving out there to bring me home.

"Q. That was in accordance with your request? A. Yes, sir."

An objection then interposed by counsel for the appellee was sustained, and the inquiry was pursued no further. These questions and answers were introduced in evidence on the trial on the merits. The automobile was a Ford coupe, and, when the accident occurred, the appellee's wife, who was driving it, had a lady friend in the car with her who lived between the place of the accident and the college. Where they were going does not appear.

The case comes squarely within...