Woods v. Clements

Decision Date19 March 1917
Docket Number18817
Citation113 Miss. 720,74 So. 422
CourtMississippi Supreme Court
PartiesWOODS v. CLEMENTS

Division B

APPEAL from the circuit court of Lauderdale county, HON. W. W VENABLE, Judge.

Suit by George B. Clements against C. F. Woods.

From a judgment for plaintiff, defendant appeals.

Appellee Dr. Clements, as plaintiff in the court below, brought this action to recover damages to his automobile as a result of the alleged negligence of the driver of appellant's Ford car. Appellant and his partner, one Poitivent, owned jointly a Ford car which was used by them in their real estate business. Mr. Woods made use of the Ford car while transacting the firm's business; while his partner, Mr Poitivent, used a horse and buggy owned by the firm and used in furtherance of the firm's business. Mr. Woods kept the Ford car at his home, and when he was not using the car himself he permitted the members of his family to use it for pleasure. Miss Majorie Woods is a daughter of appellant, a member of his family, and at the time of the collision complained of was twenty-two years old. Mr. Woods gave to this adult daughter permission at times to use the Ford car and states that he did not object to her using it at any time the car was not being used for business purposes. On the afternoon of Sunday, August 16, 1914, Miss Majorie, without the express permission of her father, but with his implied consent, took a pleasure trip with the Ford car and had with her her mother and two friends. There is nothing in the record to indicate that the daughter was not an experienced or good driver of a Ford car While going along one of the main highways in the city of Meridian, she attempted to pass by and to the left of Dr. Clements, who was driving his car in the same direction along the same road, and, in attempting to pass, Miss Woods, according to the evidence of plaintiff, negligently struck Dr. Clements' automobile, causing it to deflect to the right and down the right-hand side of an embankment and against a telephone pole, as a result of which plaintiff's car was injured. Upon the question of negligence, the evidence was in sharp conflict. The record shows that Mr. Woods was an experienced driver of a Ford car, and that he drove his own car whenever he used it, either for business or pleasure. There is some evidence tending to show that Mr. Woods, some months previous to the accident, taught his daughter how to drive a Ford car, and that Mr. Woods considered his daughter a good driver. There is no evidence tending to show that Mr. Woods ever made use of his daughter as a driver for himself, or that he ever requested her to run the machine for the benefit of his wife or other members of his family.

Appellant requested, and the court refused to grant, the following instructions:

"The court instructs the jury to find for the defendant.

"The court further charges the jury that, before the plaintiff is entitled to recover in this case, the jury must believe from a preponderance of all the testimony in the case that defendant's daughter was an incompetent or reckless driver of a Ford car, and that the defendant knew or had good reason to believe that she was incompetent or reckless in driving such car.

"The court further charges the jury that if, from all the testimony in the case, they believe that the defendant had good reason to believe and did believe, that his daughter was a competent and careful driver of a Ford car, and that so believing he permitted his said daughter to use said car for her own pleasure in driving, and that at the time of the injury complained of his said daughter was driving the car for her own pleasure, then the jury will find for the defendant, even though they may believe that the injury was caused by the negligence of the defendant's daughter in driving said car."

There was verdict and judgment for the plaintiff, from which this appeal is prosecuted.

Reversed and remanded.

Amis & Dunn, for appellant.

The precise question presented by this appeal is this, namely; is the owner of an automobile, which was acquired for business purposes, but also used for the pleasure of his family, liable for an injury to a third person, negligently inflicted by an adult child, who is permitted by the owner to drive the car for her own purposes, such adult child being a careful and competent driver and so regarded by her father? Or to state it otherwise, does the fact that the owner of an automobile, which is kept for purposes of business, but is also used for the pleasure of himself and members of his family, who permits an adult child, who is a member of his family, and who is a careful and competent driver of an automobile, to drive the car for her own pleasure as well as that of her mother and friends, render him liable to third persons, for the negligence of such adult child while driving the car pursuant to the general and implied consent of her father so to do?

So far as we have been able to find the precise question has not been decided by this court. In the case of Wynne v. Halliday, decided by this court in October, 1915, and reported in 69 So. 685, the facts were these: The appellee sued the appellant for damages to his horse and buggy alleged to have resulted by reason of the horse becoming frightened at the appellant's automobile. The automobile was owned by the appellant, and on the occasion in question was driven by William Wynne, his seventeen year old son. William had been driving automobiles for three or four years, and when the automobile here in question was purchased by his father about a year before the injury to the appellee's horse and buggy, he was placed by his father in the exclusive control thereof and was charged with the duty of keeping it in repair and of driving it when in use by appellant or members of his family. On the occasion in question, with the appellant's knowledge and consent, several boys and girls accompanied by a chaperone, were going in the automobile from Laurel to Ellisville to a baseball game the automobile being driven by William. Appellee while driving his horse and buggy met this automobile at a narrow place in the road. The horse became frightened and ran away, causing the damages for which suit was brought.

In passing on these facts, the court speaking through SMITH, C. J., said: "One of the alleged errors complained of was the refusal of the court below to grant appellant a peremptory instruction. The ground of this assignment of error is that as a general rule, a father is not responsible for the torts of his minor son unless the latter bore to the father the relation of servant to master in the commission of the act from which the injury resulted. This we may concede to be the rule but nevertheless appellant can receive no benefit therefrom, for in our opinion the relation that existed between appellant and William with reference to the running of the automobile on the occasion in question, was that of master and servant; for William was then engaged in the discharge of the duty that had been imposed upon him by appellant of driving the automobile when used for the convenience or pleasure of himself or the members of the family." Citing Labatt's Master & Servant, section 2270. Now, by referring to section 2270, Labatt's Master & Servant, we find this language:

"Liability when imputable to the parent on the ground of the child being his servant or agent.--The operation of the general rule as to the non-liability of a parent for the torts of his child may also be avoided by proof that at the time when the injury was inflicted, the latter was employed by the former in the capacity of a servant or agent, either generally or with respect to...

To continue reading

Request your trial
45 cases
  • Delta Cotton Oil Co. v. Elliott
    • United States
    • Mississippi Supreme Court
    • 24 Mayo 1937
    ... ... Co. v. Tracy, 175 Miss. 49, 166 So. 340; ... Bourgeois v. Miss. School Supply Co., 170 Miss. 310, ... 155 So. 209; Woods v. Franklin, 151 Miss. 635, 118 ... So. 450; Murphy v. Willingham, 160 Miss. 94, 133 So ... 213; Hobson v. McLeod, 165 Miss. 853, 147 So ... Miss. 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 ... ...
  • Dement v. Summer
    • United States
    • Mississippi Supreme Court
    • 10 Febrero 1936
    ... ... daughter of Mr. J. V. Dement, and Mr. Dement at the time of ... the accident. [175 Miss. 294] ... Woods ... v. Franklin, 151 Miss. 642, 118 So. 450 ... The ... relation of master and servant has to be proven directly and ... not by tion ... Woods ... v. Clements, 113 Miss. 720, 74 So. 422, 114 Miss. 301, 75 So ... 119; Harrington v. Gough, 164 Miss. 802, 145. So ... 621; Smith v. Dauber, 155 Miss ... ...
  • Bourgeois v. Mississippi School Supply Co
    • United States
    • Mississippi Supreme Court
    • 5 Junio 1934
    ... ... connected with the business of the master ... 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; ... ...
  • Mississippi Utilities Co. v. Smith
    • United States
    • Mississippi Supreme Court
    • 13 Febrero 1933
    ... ... being, the servant of the borrower, who is liable for his ... negligence ... Woods ... v. Clements, 113 Miss. 720, 74 So. 422; L.R.A. 1917E, 357; ... Carr v. Burke, 183 A.D. 361, 169 N.Y.S. 981; ... American Ry. Exp. Co. v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT