Winn v. Haliday

Citation69 So. 685,109 Miss. 691
Decision Date11 October 1915
Docket Number17140
CourtUnited States State Supreme Court of Mississippi
PartiesWINN v. HALIDAY

Appeal from the circuit court of Jones county. HON. P. B. JOHNSON Judge.

Suit by T. E. Winn against G. H. Haliday. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Halsell & Welch, for appellant.

If we concede for the purpose of this argument that the automobile was negligently operated by the son as above set forth, is the father liable? If not, appellee's case fails, and there should be judgment for appellant here; we therefore discuss this question first.

At the common law a father is not liable for the torts of a child under age; we believe the rule is different where the civil law prevails. And in some states a parent is by statute made liable for the torts of the minor child. We have no such statute, and the common-law rule is applicable to the case at bar, and governs. Of course where the relation of master and servant exists, the father may be liable for the torts of the child, but that is because of the relation of master and servant and not because of the relation of parent and child. See 29 Cyc., page 1665, for a terse statement of the law.

This is not a case, as we will undertake to show where under the rule of negligence a parent is liable for the combined negligence of parent and child by a parent permitting a child to do what a reasonably prudent parent would have reason to apprehend would result in damages to another.

For a case absolutely in point with the case at bar, and as we think decisive of the propositions involved in this phrase of the case at bar, see the recently well-considered case of Parker v. Wilson, 60 So. 150. We will not undertake to quote from the case, because it is accessible to the court, is a short opinion, covering absolutely the question raised as we think by the fifth assignment of error on the part of the appellant. In this case of Parker v. Wilson, the court very properly, we think, said that automobiles are not to be classed with highly dangerous agencies, and points out the difference in a case like the one at bar, and a case where there is combined negligence, and negligence of the father in intrusting a dangerous agency to a son known to be negligent. True there is an allegation in the declaration in the case at bar that the appellant knew his son to be given to "joy riding," but the proof on this question is altogether wanting. In fact we think the testimony shows that appellant's son was a competent, experienced driver, who had been trained, and cautioned to exercise due care. It appears from his testimony that he was accustomed for a number of years to operate an automobile, and that he was familiar with its construction, and its varying moods. The court seems to have declined to grant appellant, on the trial of the case below, a peremptory instruction on the theory that the father permitted the son to operate a dangerous machine, but the Alabama court has expressly held in the case of Parker v. Wilson, supra, that an automobile was not per se a dangerous instrument. They are machines that are in common use, and are safe if properly handled. To the same effect is the holding of the court in the case of Dorman v. Thomson, a New Jersey case, reported in 19 L. R. A. (new series), page 335, and also reported in 135 American State Reports, page 677. See, also, the case of Reynolds v. Buck, 103 Northwestern Reporter, page 946, 127 Iowa 601, in which case the defendant dealt in automobiles, and had decorated one for use in a parade, and after the parade left the automobile in front of his store, when his son coming upon the machine where it stood, invited a lady friend to ride, and while he was driving, by his negligence, plaintiffs horse was frightened, ran away and injured the plaintiff. The court held that the defendant was not liable.

Henry Hilbun, for appellant.

We think the court erred in holding the appellant liable for the negligence of his son in operating said automobile, under the facts as shown in this record. This phase of the case is presented in the brief of Messrs. Halsell & Welch, of counsel for appellant, now on file in this cause. We do not care to add to their brief on this subject, as we believe that the position taken by them is sound and is supported by the authorities.

It seems to us that appellant could not be made liable for the negligence of his son, unless the relation of master and servant existed, which the evidence shows did not exist, or unless the son was acting in furtherance of the business or the interest of his father, the appellant. And the evidence shows that this was not true.

We therefore, submit that in our opinion the court committed grave error in admitting the evidence of the witness Dorsey over the objection of the defendant, as above set out; in granting the instructions for the plaintiff that did not predicate the right of plaintiff to recover on the negligence of the defendant or his son; in granting the instructions for the plaintiff allowing the plaintiff full compensation for his injuries without regard to contributory negligence on his part; and in refusing to grant a peremptory instruction asked for by the defendant, and in holding that the appellant was liable for the negligence of his son under the facts and...

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32 cases
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    • United States
    • United States State Supreme Court of Mississippi
    • 24 d1 Maio d1 1937
    ......202] the owner when the owner is not present or driving. the motor vehicle. . . Woods. v. Clements, 113 Miss. 720, 74 So. 422; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Dempsey v. Frazier, 119 Miss. 6, 80 So. 341; Isaacs v. Prince &. Wilds, 133 Miss. 206, 97 So. 558; ......
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    • United States
    • United States State Supreme Court of Mississippi
    • 10 d1 Fevereiro d1 1936
    ...... the agent, and servant of her father, J. V. Dement, at the. time of appellee's injuries. . . Winn v. Haliday, 69 So. 685, 109 Miss. 691; McCaffery v. Lukens, 67 Pa. S.Ct. 231; Kichefsky v. Wiatrzykowski, 210 N.W. 679; Donaghue v. Hayden, ......
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    • United States
    • United States State Supreme Court of Mississippi
    • 5 d2 Junho d2 1934
    ...... . . There. was no relationship of master and servant. . . Woods. v. Clements, 113 Miss. 720, 74 So. 422; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Dempsey v. Frazier, 119 Miss. 6, 80 So. 341; Isaacs v. ......
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    • United States
    • United States State Supreme Court of Missouri
    • 22 d6 Dezembro d6 1917
    ...Y. 619, 102 N. E. 1100; Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322; Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487; Winn v. Haliday (1915) 109 Miss. 691, 69 South. 685; McHarg v. Adt (1914) 163 App. Div. 782, 149 N. Y. Supp. 244; Carrier v. Donovan, 88 Conn. 37, 89 Atl. 894; Hiroux ......
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