Vicksburg Gas Co. v. Ferguson

• Decision Date: 07 December 1925
• Docket Number: 25028
• Citation: 140 Miss. 543,106 So. 258
• Court: Mississippi Supreme Court
• Parties: VICKSBURG GAS CO. v. FERGUSON. [*]

106 So. 258

140 Miss. 543

VICKSBURG GAS CO. v. FERGUSON. ^[*]

No. 25028

Supreme Court of Mississippi

December 7, 1925

(In Banc.)

MASTER AND SERVANT. Automobile not dangerous instrumentality rendering owner liable for driver's negligent use.

An automobile or auto truck is not a dangerous instrumentality so as to render its owner liable for negligent use of it on a highway by the owner's employee, who had borrowed it for a purpose disconnected with owner's business.

ETHRIDGE and HOLDEN, JJ., dissenting.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Mrs. B. P. Ferguson against the Vicksburg Gas Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Case reversed.

Brunini & Hirsch, for appellant.

Mr Fuller was not about his master's business when the car which had been loaned to him, by the Vicksburg Gas Company, had the collision with the Ferguson car. On the Easter Sunday in question Mr. Fuller had borrowed the truck of the Gas Company, as his own car was a two-seated Ford Runabout, and wouldn't carry his children, and the children of his neighbors, to the Easter egg hunt picnic, in the National Park.

The appellant asked the court to instruct the jury to find for it. This instruction should have been given, and we are now asking this court to do what the court below should have done. We are not going to burden this court with any extensive citation of authority. See Huddy on Automobiles (6 Ed.), sec. 642; Babbit, on Motor Vehicles (3 Ed.), 729, secs. 1152 to 1158.

A. A. Chaney, for appellee.

The courts are uniform in holding that where the employee temporarily abandons his work and departs on a mission of his own, the master is liable for his tortious acts after he starts on his return journey to his work. So, even if it should be held that Fuller was not on duty while at the picnic, and in going to the picnic grounds, notwithstanding the fact that it was admitted that he was on duty, under the ruling of this court, the employees, Fuller and King, were on duty on their return to their place of work, the Gas Plant. The fact that they had a child or two to put off on their way to their work could make no difference in this well-established rule. This rule has been very definitely approved by our own court in Barmore v. Vicksburg, Shreveport & Pacific Railway Co., 85 Miss. 462, 38 So. 210.

An automobile is a dangerous agency and instrumentality. They are not per se dangerous, as most courts hold, yet they may become very dangerous when not properly run and operated. The courts, as well as the legislatures throughout the country, are beginning to recognize the many dangers incident to the use and operation of automobiles. Our own state, through its legislature, has, from time to time, enacted special regulations for the control and operation of the various motor vehicles on the public highways in this state. These regulations impose certain duties on the owners of all motor vehicles, specially requiring licenses, tags and numbers for identification, and providing that no automobile shall be run and operated, or caused to be run or operated at a greater rate of speed than ten miles per hour around a curve, not faster than eight miles per hour in passing a pedestrian, not over ten miles per hour in crossing a bridge, and require the sounding of an alarm in passing people on the highway, and that, in case of accident, the name and address of the owner shall be given. By the enactment of these laws, our legislature recognized the dangers incident to the operation of automobiles. While the enactments of the legislature do not make any change in the common-law rules relative to the liability of employers for the negligence of employees, yet they impose upon the owner of automobiles certain duties not imposed upon owners of any other class of vehicles, clearly indicating that the lawmakers recognized the great danger incident to the operation of all classes of motor vehicles. The courts of the country have also, for good reasons, recognized the dangers connected with the operation of automobiles and other dangerous instrumentalities. It is uniformly held that where an employer trusts to his employees the control, use, and operation of automobiles, or other dangerous instrumentalities, for their personal use in going to and from their work, or to be used by them at their pleasure, that the master is liable where injury occurs by reason of the negligent operation thereof. Ingraham v. Stockamore, 118 N.Y.S. 399; Anderson v. Southern Cotton Oil Company (Florida), 74 So. 976. Also to the same effect see Studebaker Bros. v. Kitts (Texas), 152 S.W. 464.

It has been repeatedly held that the ownership of an automobile is prima-facie proof that the custodian of the car is acting within the scope of the owner's business. Arkansas--Terry Dairy Co. v. Parker, 223 S.W. 6; Arizona--Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; California--Dierks v. Newsom (Cal. App.), 194 P. 519; Iowa--Hall v. Young, 177 N.W. 694; New York--Ferris v. Sterling, 214 N.Y. 249; Oregon--West v. Kern, 88 Or. 247; Tennessee--Davis v. Newsum Auto Tire & Vulcanizing Co., 141 Tenn. 527; Washington--Moore v. Roddie, 103 Wash. 386.

It is also generally held that evidence of defendant's ownership of an automobile, together with proof that the driver is in his employ, raises a presumption that he is acting for the owner in operating the machine, and within the scope of the owner's business. United States--Benn v. Forrest, 213 F. 763; Foundation Co. v. Henderson, 264 F. 483; Alabama--Penticost v. Massey, 201 Ala. 261, 77 So. 675; Dowdell v. Beasley (Ala. App.), 82 So. 40; California--Chamberlain v. Southern Cal. Edison Co., 167 Cal. 500; Colorado--Ward v. Teller Reservoir & I. Co., 60 Colo. 47; Georgia--Fielder v. Davidson, 139 Ga. 509; Kentucky--Wood v. Indianapolis Abbatoir Co., 178 Ky. 188; Michigan--Hatter v. Dodge Bros., 202 Mich. 97; Missouri--Guthrie v. Holmes, 272 Mo. 215; Long v. Nute, 123 Mo.App. 204; New York--Ferris v. Sterling, 215 N.Y. 249; Rose v. Balfe, 223 N.Y. 481; Stewart v. Baruch, 103 A.D. 577, 93 N.Y.S. 161; Stern v. International Ry. Co., 167 A.D. 503, 153 N.Y.S. 520; Bogorad v. Dix, 176 A.D. 774, 162 N.Y.S. 922; North Carolina--Wilson v. Polk, 175 N.C. 490; Clark v. Sweeney, 175 N.C. 280; Oregon--Kahn v. Home Tel. & Tel. C., 78 Oreg. 308; Tennessee--Frank v. Wright, 140 Tenn. 538; Texas--Gordon v. T. & P. Mercantile & Mfg. Co. Civ. App.), 190 S.W. 748; Washington--Kneff v. Sanford, 63 Wash. 503.

This is not a case where an employer, without any reservations, lends a motor vehicle to an employee. The testimony is clear that the defendant retained control over the employees as well as the truck. The men were on duty, this being admitted by the president of the defendant company. The defendant wanted to know the exact whereabouts of the truck and the men, so its president stated. Fuller, the foreman, and King, the driver, were on duty, so Mr. Fuller stated. They were returning to their work at the time of the collision, so the foreman testified.

With such testimony before the trial court, was the defendant entitled to a directed verdict? Certainly the court will not so hold.

ANDERSON, J. ETHRIDGE, J. dissenting.

OPINION

ANDERSON, J.

Appellee, Mrs. B. P. Ferguson, brought this action in the circuit court of Warren county against appellant, Vicksburg Gas Company, for damages done her automobile by means of a collision between it and an automobile truck belonging to appellant, and recovered a judgment for sixty-six dollars and fifty cents, from which appellant prosecutes this appeal.

Conceding every material fact which appellee's evidence tends to prove, the question is whether or not there is any liability on the part of appellant. If that question is to be answered in the affirmative, then the verdict and judgment appealed from must stand. On the other hand, if it is to be answered in the negative, appellant was entitled to a directed verdict in its favor as requested.

Appellee's evidence showed that the collision and damage done her car was through the negligence of the driver of appellant's truck, one R. W. Fuller, who was at the time appellant's plant foreman, but was driving appellant's truck on a mission of his own. On the day of the collision between the truck and car there was an Easter egg hunt for the children in the National Military Park at Vicksburg. Mr. Fuller, appellant's plant foreman, borrowed one of its commercial trucks used in connection with its business for the purpose of transporting to and from the Easter egg hunt several children. It is therefore without conflict in the testimony that at the time of the collision Mr. Fuller, the driver of the truck whose fault caused the collision, was not acting in furtherance of his master's business (the business of appellant), but was acting entirely without the scope of his authority.

Appellee however, seeks to justify the judgment appealed from upon the principle that an automobile is a dangerous instrumentality--is per se dangerous--and therefore the owner is under the duty to so guard it and control it as that it will not cause injury to others. In other words, appellee would classify automobiles with what are called dangerous instrumentalities such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances and agencies, and hold the owner liable for injuries resulting in its negligent operation whether the driver be the servant or bailee of the owner. If an automobile is to be so classified, undoubtedly, under the authorities, the owner is liable for injuries caused by its being negligently operated regardless of whether the driver guilty of the...