Opinion
No. 30340.
January 23, 1933.
1. AUTOMOBILES.
Husband cannot be held liable for damages inflicted by wife while driving husband's automobile, solely on "family purpose doctrine," which does not apply in Mississippi.
2. AUTOMOBILES.
Whether wife was driving automobile at time of accident and was negligent in colliding with another automobile held for jury.
APPEAL from circuit court of Lauderdale county. HON. J.D. FATHEREE, Judge.
Dunn Snow, of Meridian, for appellants.
An automobile is not a dangerous instrumentality.
Primos v. Gulfport Laundry Cleaning Company, 157 Miss. 770, 128 So. 507; Vicksburg Gas Company v. Ferguson, 140 Miss. 543, 106 So. 258.
One who loans his automobile to another is not liable for the negligence of the lendee which results in injuries to a third person.
Sharples v. Watson, 127 So. 779, 157 Miss. 236.
The owner of an automobile driven by his wife, who was not driving such automobile for his benefit, or at his express or implied request, is not liable for injuries negligently inflicted by the wife in driving the automobile, where, he was not negligent in permitting the wife to drive the same.
Smith v. Dauber, 125 So. 102.
This court has declined to apply the so-called "family purpose doctrine."
Smith v. Dauber, 125 So. 102.
The general rule is that a parent is not liable for the tortious act of a minor child on the mere ground of parental relation, but, the parent is responsible only on the same ground that he is for the torts of others.
Dempsey v. Frazier, 119 Miss. 1, 80 So. 341; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Howell v. Norton, 134 Miss. 616, 99 So. 440.
Mrs. Harrington was not driving the car. The boy was not upon any mission for the mother. He was acting solely for himself in reference to his employment by a third person and from which employment the mother derived no pecuniary benefit. The relation of principal and agent did not exist. The only relation which existed was that of parent and child with the incidental right and power of control.
By instructions granted the appellee the jury was told that if they believed from a preponderance of the evidence in the case that Gough's car reached and entered the intersection of the streets ahead of the Harrington car, then, the Gough car had the right of way and the first right to cross the intersection and it became the duty of the driver of the Harrington car to accord said right of crossing 22nd Avenue.
When a vehicle traveling on a right of way street arrives at the intersection of a cross street at approximately the same time that a vehicle on the cross street arrives at the point of intersection, then the vehicle on the right of way street has the privilege to proceed.
Meyers v. Tims, 138 So. 578.
By instruction number 5 the jury was told that "any act or acts relating to the running, guiding, steering or change in course of an automobile or the handling of the steering wheel or guiding apparatus of an automobile" would constitute the operation of an automobile within the meaning of said instruction.
It seems to us to be wholly unreasonable to say that a person riding in an automobile, who, when peril becomes imminent, does some immediate and single act in an effort to avoid the danger of a mishap, is to be held to be operating the car, and, is thereby made responsible legally for its proper control.
The sum awarded by the verdict of the jury is grossly excessive and evinces bias and prejudices against the appellants and in favor of the appellee to such degree as that the appellants were deprived of a fair and impartial trial.
Gabe Jacobson and Chas. B. Cameron, both of Meridian, for appellee.
Where a car was being driven at a high rate of speed in violation of city ordinance by minor son, without any effort on part of mother to prevent and control same, she occupying front seat of car and being chargeable under the law with duty of control, this constitutes negligence on mother's part and liability exists therefor.
Berry on Automobiles (3 Ed.), sec. 1223; Alpha Thixton v. Robert Palmer, 210 Ky. 838, 267 S.W. 971, 44 A.L.R. 1379.
Where servant permits a third party to drive car, there was no relinquishment of control and car was still being used in furtherance of master's purpose for which servant had taken car out.
Kayser v. Van Nest, 51 L.R.A. (N.S.) 970.
The relation that existed between appellant and them with reference to the running of the automobile on the occasion in question was that of master and servant; for the son 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 his family.
Winn v. Haliday, 109 Miss. 696.
The owner of an automobile being driven by another who is not his servant or who was not driving the automobile for the owner's benefit, at his express or implied request, is not liable for injuries negligently inflicted by such other in driving the automobile, unless he (the owner) was negligent in permitting such other to drive the automobile.
Smith v. Dauber, 155 Miss. 698.
As to facts which may constitute relation of master and servant see:
Terry v. Smylie, 161 Miss. 39.
It is a part of the duty of a father to provide reasonable conveniences and entertainment for members of his family. Where a father does furnish a car to his wife and minor children and permits them to use it, they are about his business whenever they are using it with his consent and permission. In such case the driver of the car, if a minor, is a servant of the father and the business of the father, although he is driving for his personal pleasure alone.
Herman v. Maley, 159 Miss. 553.
If the father supplies his family with an automobile to be used for the pleasure and entertainment of the entire family he may be held liable for the negligent operation of the car by one of the minor children selected to run or operate the machine.
Woods v. Clements, 113 Miss. 727.
While it may be true that a parent may be responsible for the negligence of his child in operating, with the parent's consent, an automobile maintained by the parent for family use where the child is living in the household of the parent as an object of his bounty and is a person whom the parent is under a moral or legal obligation to support, although the child may be using the machines for a trip for his own pleasure, yet, where these elements are not present, no ground of liability on the part of the parent can be discovered. With the mentioned conditions present, it may be that the child while operating the automobile with the parents' consent is carrying out a purpose, or business of a parent by discharging the undertaking of the parent to afford pleasure to those dependent upon him morally or legally.
4 S.W. 703, (Ky.); Kennedy v. Wolf, 298 S.W. 188; 5 A.L.R. 232; 10 A.L.R. 1452; 14 A.L.R. 1088; 19 A.L.R. 390; 20 A.L.R. 1471; 32 A.L.R. 1510.
But it is also held in our opinion by the great weight of authority that where a parent owns a car for the convenience and pleasure of the family, a minor child, who is a member of the family, though using the car at the time for his own purposes with the parent's consent and approval, will be regarded as representing the parent in such use and the question of liability for negligent injury may be considered and determined in that aspect.
Clark v. Sweaney, 176 N.C. 529, 97 S.E. 474; 175 N.C. 280, 95 S.E. 568; Griffin v. Russell, 144 Ga. 275, 87 S.E. 10; Hutchins v. Haffuer, 63 Cal. 365, 167 P. 966; Stowe v. Morris, 147 Ky. 386, 144 S.W. 52; McNeal v. McKain, 33 Okla. 449, 126 P. 742; Birch v. Abercrombie, 74 Wn. 486, 133 P. 1020; Dillingham v. Teeter, 91 Okla. 165, 216 P. 463; Curtis v. Harrison (Mo. App.), 253 S.W. 474; Stowe v. Morris, 144 S.W. 52, 147 Ky. L. 386.
When an automobile was owned by a husband and wife, and at the time of the accident was being driven by the owner's daughter, who had her parents' permission to drive the car to take out other members of the family or her guests and who had her mother with her in the car, the owner was liable for damages caused by the accident under the peculiar circumstances appearing.
McComb v. Boardman, 191 N.Y.S. 874.
A son required to operate a family automobile at the instance of his mother, held engaged in the business of the father so that the latter was liable.
Olberg v. Krochler, 1 F. 140; Smith v. Jordon, 97 N.E. 761, 211 Mass. 269; Lacey v. Forehand (1921), 108 S.E. 247; Griffin v. Russell, 144 Ga. 275, 87 S.E. 10; Stevens v. Luther, 180 N.W. 87, 14 A.L.R. 1088; Flores v. Garcia, 226 S.W. 743, 14 A.L.R. 1087; Jaeger v. Salentine, 117 N.W. 886, 10 A.L.R. 1450; Ullman v. Linderman, 10 A.L.R. 1440; Birch v. Abercrombie, 74 Wn. 496, 5 A.L.R. 222, cites 133 P. 1020.
The instructions complained of literally announce the correct rule of law governing rights of travellers at intersections on right of way or boulevard thoroughfares.
Meyers v. Tims, 138 So. 578; Gough v. Harrington, 141 So. 280.
Mrs. Harrington was engaged at all times in the driving and operation of car as shown by testimony of appellee and the jury by their verdict so found.
These instructions properly defined the words "operate" and "drive" as used in the court's charges to the jury and were properly granted. They correctly announce the law and were peculiarly applicable to the facts of this case.
The verdict was not excessive.
The appellee, while driving his automobile across a street intersection, was struck by another automobile, which he says was being driven by Mrs. Harrington. He was severely injured thereby, and recovered a judgment against the appellants therefor. The declaration alleges "that the automobile being driven at the time by Mrs. J.S. Harrington was owned by the defendant, J.S. Harrington, and was being used at the time of said accident and for a long time prior thereto by the members of the family of the defendant, J.S. Harrington, and used as a family conveyance by and with the consent, knowledge and permission of the defendant, J.S. Harrington, and on the day of the accident above alleged, was being operated and driven by the defendant, Mrs. J.S. Harrington as the wife and member of the family of the defendant, J.S. Harrington."
The evidence conforms to this allegation, except that the husband did not know of the use by the wife of the automobile on the particular occasion. Mrs. Harrington and a minor son of the appellants were in the automobile at the time of the collision, the son being on his way to his place of business, he then being employed by another with his parents' consent. The appellee says that the automobile was being driven by Mrs. Harrington, but she says that it was being driven by her son, and when she saw that the collision was about to occur, she caught the steering wheel and attempted to deflect the automobile's course so as to avoid the collision.
The evidence presented a question for the jury as to the negligence vel non of the driver of the Harrington automobile, and we will assume, for the purpose of the argument that on the evidence the wife was liable only if the automobile was being driven by her.
The court refused an instruction requested by the husband, directing the jury to return a verdict for him, and also another and separate instruction by the wife directing the jury to return a verdict for her.
The instruction requested by the husband should have been granted; the "Family Purpose Doctrine" not being in vogue in this state. Smith v. Dauber, 155 Miss. 694, 125 So. 102; Sharples v. Watson, 157 Miss. 236, 127 So. 779; Murphy v. Willingham, 160 Miss. 94, 133 So. 213. Whether the wife was driving the automobile, and, if so, whether the collision was caused by her negligence, were, on the evidence, for the determination of the jury, and therefore she was not entitled to a directed verdict.
The appellants complain of several instructions granted the appellee, all of which seem to be unexceptionable, but, if there is error therein, it is not such as to justify a reversal, particularly when the instructions are read in connection with those granted the appellants.
Complaint is also made at the amount of the verdict, but, while it may be large, it cannot be said to be excessive within the rules justifying a reversal therefor.
The judgment of the court below will be reversed as to the husband, and the case as to him will be dismissed; but it will be affirmed as to the wife.
So ordered.