Watson v. Holeman

• Decision Date: 02 April 1934
• Docket Number: 31147
• Citation: 153 So. 669,169 Miss. 585
• Court: Mississippi Supreme Court
• Parties: WATSON v. HOLEMAN

153 So. 669

169 Miss. 585

WATSON v. HOLEMAN

No. 31147

Supreme Court of Mississippi

April 2, 1934

Division B

1 AUTOMOBILES.

Master furnishing automobile to servant who, while performing master's business, invited passenger to ride, held liable to passenger, whether invitee or trespasser, where passenger was injured when servant lost control.

2 AUTOMOBILES.

Though passenger invited by servant to ride in master's automobile may be trespasser, master acting through servant must refrain from reckless conduct evincing wanton disregard of passenger's safety.

3 NEGLIGENCE.

Ordinarily, doctrine of assumed risk pertains only to contractual relations.

4. NEGLIGENCE.

In view of statute whereby contributory negligence merely dimishes damages, automobile owner held not entitled to more than instruction directing jury to consider passenger's contributory negligence (Code 1930, section 511).

5. APPEAL AND ERROR.

In absence of motion for new trial, appellate court cannot interfere because of allegedly excessive verdict.

HON. JOHN F. ALLEN, Judge.

APPEAL from circuit court of Montgomery county, HON. JOHN F. ALLEN, Judge.

Action by Allen Holeman against R. C. Watson. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Knox & Horton, of Winona, and Armstrong, McCadden Allen, of Memphis, Tennessee, for appellant.

This case is distinguishable from any case in which the agent was employed for the sole purpose of operating an automobile. We take the position in this case that the relationship of agency between Brister and Watson on this particular trip, was the same as though Brister were employed for this one particular trip, and that his authority extended only to go to Vaiden, collect the said money, and return, and that anything which he did beyond this particular authority was in an individual capacity and not as agent or servant.

Western Union Telegraph Co. v. Stacy, 139 So. 604; McLaurin v. McLaurin Furniture Co., 146, So. 877.

The law requires the guest to protect his own safety and the law does not allow him to carelessly take a chance when he is a gratuitous passenger and then hold the operator of the car liable for injuries which were sustained through negligence to which he materially contributed by not regarding his own safety.

5 and 6 Huddy's Automobile Law (9 Ed.), page 263, section 144 and page 267, section 145.

The verdict rendered in the case at bar by the jury was excessive under the facts of the case as related by all of the witnesses; for the plaintiff and the instructions granted by the court below.

J. W. Conger and V. D. Rowe, both of Winona, for appellee.

It was the duty of appellant not to wilfully or wantonly injure appellee through his agent or otherwise. It may be that, as to appellant, the appellee was a trespasser. But in a long line of decisions of this honorable court and all the courts, a trespasser is owed a duty by the principal's agent, and that duty is that as a trespasser, he ought not to be wilfully or wantonly injured by the agent, while the agent is about his principal's business.

Illinois Central Railroad Co. v. Messina, 111 Miss. 884, 72 So. 779.

Brister, appellant's agent, at the time appellee was injured, was acting in and about his master's business, although he was returning from Vaiden to Winona from a special trip on a special matter of business for appellant.

The question of whether or not the excessive rate of speed was maintained for the accommodation of appellee was submitted to the jury and solved against appellant.

The verdict of the jury was not excessive, in view of the character of injuries to appellee as fully detailed by appellee in his testimony, and as fully explained in the testimony of appellee's physician.

Alabama & V. Ry. Co. v. Dennis, 91 So. 4, 128 Miss. 298; Railroad Co. v. Nelson, 82 Miss. 653, 35 So. 158.

It is generally held that the rule rests upon the theory that a trespasser in imminent peril, from which he cannot extricate himself, may not be wilfully and ruthlessly injured, and that an employer is liable for the failure of his employee to exercise due care.

Trico Coffee Co. et al. v. Clemens, 151 So. 175; Rogers v. Lewis, 144 So. 373; Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A. L. R. 131; Kalmich v. White, 95 Conn. 568, 111 A. 845.

OPINION

Griffith, J.

Appellant furnished his servant with an automobile, and directed him to drive to a neighboring town, collect some money there owing to appellant, and immediately to return. After departing and while on the way, the servant invited appellee to ride in the automobile, which invitation was accepted. Not only in going but also in returning, the servant drove the automobile on a gravel road at a speed of approximately sixty miles an hour over the protests of the passenger, and...