Woods v. Franklin

• Decision Date: 22 October 1928
• Docket Number: 27351
• Citation: Woods v. Franklin, 151 Miss. 635, 118 So. 450 (Miss. 1928)
• Court: Mississippi Supreme Court
• Parties: WOODS v. FRANKLIN. [*]

118 So. 450

151 Miss. 635

WOODS v. FRANKLIN. ^[*]

No. 27351

Supreme Court of Mississippi

October 22, 1928

Division B

1 AUTOMOBILES. Negligence of automobile driver striking pedestrian at street intersection held for jury.

Evidence of driver's negligence, in action to recover damages for an injury to pedestrian struck by automobile at street intersection held sufficient to require submission to jury.

2 AUTOMOBILES. Relation of master and. servant between automobile owner and sister driving car at time of accident must be proven directly.

In order to create liability of automobile owner for injury to pedestrian struck by automobile when it was being driven by his sister, the relation of master and servant between owner and driver must be proven directly, and not by way of presumption.

3 EVIDENCE. Testimony that automobile driver stated, on day lowing injury, that brakes were defective, held inadmissible as res gestae.

In pedestrian's action for injuries as result of being struck by automobile driven by sister of owner at such time, testimony that driver had stated to plaintiff, on the day following injury, that brakes were defective, held inadmissible against owner as not part of res gestae, being too remote.

4. AUTOMOBILES. Evidence as to defective condition of brakes at time of striking pedestrian held insufficient for submission to jury. In pedestrian's action for injuries as result of being struck by automobile at street intersection, evidence relative to defective condition of brakes on automobile at time of accident held insufficient for submission to jury.

HON. E. L. BRIEN, Judge.

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

Action by Mrs. J. M. Woods against J. A. Franklin. Judgment of dismissal, and plaintiff appeals. Affirmed.

Affirmed.

Vellor & Kelly and Chaney & Culkins, for appellant.

Proof that an automobile was being driven by a person other than the defendant or owner is sufficient. To raise the presumption or inference, that at the time of the injury the vehicle was in the possession, or under the control of the defendant, in the person of his agent or employee, and this is especially true where such driver is the one regularly seen driving and operating the car. This rule has been announced very positively, we find in the following cases: Finegold v. Union Outfitting Co., 110 Nebr. 202, 193 N.W. 331; Crowell v. Padolsky, 98 N. J. L. 552, 120 A. 23; Mahan v. Walker, 97 N. J. L. 304, 117 A. 609; Tischler v. Steinholtz, 80 N. J. L. 149, 122 A. 880; Okin v. Essex Sales Co. (N. J. Sup.), 135 A. 921; Winter v. North Jersey Bus Co. (N. J. Sup.), 135 A. 473; Orlando v. Pioneer Barber Towel Supply Co., 239 N.Y. 342, 146 N.E. 621; McCann v. Davison, 145 A.D. 522, 130 N.Y.S. 473; Anning v. Rothschild, 130 Wash. 232, 226 P. 1013; Savage v. Donovan, 118 Wash. 692, 204 P. 805; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59.

In other jurisdictions it is held that proof of ownership and of the owner's permission to operate the vehicle is sufficient to create the presumption or inference that the operator was the agent or servant of the owner. In this connection we direct the attention of the court to the following authorities: Alabama--Ford v. Hankins, 209 Ala. 202, 96 S. 349. Arizona--Baker v. Maseeh, 20 Ariz. 201, 179 P. 53. California--Frierson v. Pacific Gas, etc., Co., 55 Cal. A. 397, 203 F. 788; Dierks v. Newsom, 49 Cal. A. 789, 194 P. 518. Maryland--Louis v. Johnson, 146 Md. 115, 125 A. 895; Stewart Taxi-Serv. Co. v. Roy, 127 Md. 70, 95 A. 1057. Minnesota--Ahlberg v. Griggs, 158 Minn. 11, 196 N.W. 652. New York--Glasgow v. Weldt, 218 A.D. 749, 218 N.Y.S. 115; Potchasky v. Marshall, 211 A.D. 236, 207 N.Y.S. 562. Oregon--West v. Kern, 88 Ore. 247, 171 P. 413, 1050, L. R. A. 1918D 920; Houston v. Keats Auto Co., 85 Ore. 125, 166 P. 531. Pennsylvania--Holzheimer v. Lit, 262 Pa. 150, 105 A. 73. But see Lotz v. Hanlon, 217 Pa. 339, 66 A. 525, 118 Am. St. R. 922, 10 L. R. A. (N. S.) 202, 10 Ann. Cas. 731 (where the court said that proof of ownership is adequate only when the attending circumstances point to no different conclusion). Rhode Island--Burns v. Brightman, 44 R. I. 316, 117 A. 26. South Carolina--Burbage v. Curry, 127 S.C. 349, 121 S.E. 267. Washington--Moore v. Roddie, 103 Wash. 386, 174 P. 648, 106 Wash. 548, 180 P. 879. West Virginia--Jones v. Cook, 90 W.Va. 710, 111 S.E. 828. Wisconsin--Enea v. Pfister, 180 Wis. 329, 192 N.W. 1018.

The fact of agency may be assumed from the improbability that one should, without authority, assume to act for another for a considerable length of time and from the fact that such would naturally become known by the purported principal. Russell v. Palentine Ins. Co., 63 So. 644, 106 Miss. 290, 51 L. R. A. (N. S.) 471.

Where evidence as to agency is in dispute, or reasonable adverse inferences from evidence are deducible, question is one of fact. Thompson v. Atchley, 78 So. 196, 201 Ala. 398; Id., 79 So. 478. See sections 6687, 6690, Hemingway's Code of 1927; Gilmore v. Caswell, 65 Cal. A. 299, 224, P. 249; Orange Crush Bottling Co. v. Smith, 35 Ga. A. 92, 132 S.E. 259; Barmore v. V., S. & P. Ry. Co., 38 So. 210, 85 Miss. 426; Herman v. Egy (Iowa), 207 N.W. 116.

Our court, in the case of Vicksburg Gas Co. v. Fergerson, 140 Miss. 543, is committed to the rule that an automobile is not inherently a dangerous instrumentality, so as to render the owner liable for its negligent use on a highway by an employee, using it for a purpose not connected with the business. We have made a very exhaustive search on the question, however, and no court, so far as we have been able to ascertain, has held that an automobile without brakes is not a dangerous instrumentality.

Brunini & Hirsch, for appellee.

Both Mrs. Ryles and her mother, Mrs. Woods, testified to the alleged declarations made by Miss Franklin to Mrs. Woods, in the presence of Mrs. Ryles, at the Sanitarium the day after the accident. This testimony was admitted over our repeated objection. Such testimony has been condemned by every textwriter and court in the land. It is elementary that such declarations are inadmissible. They are not a part of the res gestae. See Gulf R. R. Co. v. Hudson, 142 Miss. 542, 550; V. & M. Railroad Co. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205.

It is necessary to prove something beyond mere ownership and injury. There is no evidence in this record that Miss Franklin was on her way to her brother's place of business that afternoon. There is nothing in this record that brings this case within the "family purpose doctrine." Winn v. Haliday, 109 Miss. 691; Woods v. Clements, 113 Miss. 720, 727; McNeal v. McKain, 33 Okla, 449, 126 P. 742, 41 L. R. A. (N. S.) 775; Woods v. Clements, 114 Miss. 301; Dempsey v. Frazier, 119 Miss. 1, 5.

If the appellant cannot raise the presumption of this family relationship by simply proving that the brother owns the car and the sister has been driving it, the appellant's case must completely fail. Hinman v. Sabin, 147 Miss. 509; Willett v. Heyer, 140 A. 411, 412; Fame Laundry Co. v. Henry, 144 N.E. 545, 548.

On page 6 of appellant's brief, the contention is made that section 6690 of the Hemingway's Code of 1927, provides that the plaintiff shall be deemed to have made out a prima-facie case by showing the fact of such injury, where the motor vehicle is operated in violation of any of the provisions of the act. It will be noted that that provision is not the counterpart of the prima-facie statute relative to railroads. The provision is very much more restricted and limited.

We submit, that the prima-facie statute in reference to motor vehicles, found in the Act of 1916, does not apply to the facts in this case, because Miss Franklin did not violate section 6683 or section 6687 of the 1927 Hemingway's Code, or the same sections of the Act of 1916.

OPINION

ANDERSON, J.

Appellant brought this action against appellee in the circuit court of Warren county, to recover damages for an injury received by her as the result of being struck by an automobile belonging to appellee, which was being driven at the time of the injury by one of appellee's sisters. At the conclusion of the evidence for the appellant, on motion of the appellee the evidence was excluded, and a verdict directed in favor of the appellee. Accordingly judgment was entered, dismissing appellant's suit. From that judgment appellant prosecutes this appeal.

Appellant's declaration was in three counts. In the first count the declaration averred that the appellee was the owner of a Dodge automobile, which was used by himself and his two sisters as a family car; that on the day the injury complained of occurred, with appellant's permission and consent, his sister was driving the car on the streets of the city of Vicksburg at a fast, reckless, dangerous, and unlawful rate of speed, by reason whereof she ran down and struck appellant with the car.

The second count of the declaration averred that appellee's sister who was driving the car, by reason of her inexperience, recklessness, and carelessness, was not a proper person to drive and operate a car, all of which appellee knew or could have known by reasonable care; and as a result thereof appellant suffered the injury complained of.

The third count of the declaration averred that the brakes on the car were old, worn, broken, and out of repair, and that by reason thereof the car ran into and against her and inflicted upon her the injuries sued for. To the declaration appellee pleaded the general issue, and gave notice thereunder that he would undertake to prove that appellant, by reason of her own negligence, suffered the injury sued for, without any fault on the part of appellee....