Opinion
No. 33935.
January 2, 1940. Suggestion of Error Overruled February 12, 1940.
1. SALES.
An owner of chattel, which he desires to sell, has lawful right to deliver it into hands and exclusive control of prospective purchaser or his agent or representative for purposes of test and demonstration by actual use.
2. AUTOMOBILES.
An owner of automobile is not liable for negligence of prospective purchaser thereof while driving it to ascertain its qualities when not accompanied by owner or his agent or servant, in absence of anything to put owner on notice that such prospect was negligent or incompetent driver, though owner is automobile dealer.
3. AUTOMOBILES.
Actual physical control of automobile at moment of injury caused by negligent operation thereof is not always determinative of legal liability to injured person for damages, but test is who had right of control at such time, which involves question in whose present interest or service actual control was being exercised.
4. AUTOMOBILES.
Where automobile is actually delivered to or for prospective purchaser thereof and all control over its physical operation surrendered by its owner for purpose of test or demonstration to convince prospect that it would be to his interest to make purchase, anything done in such demonstration and test by prospect or another with his consent must be ascribed to prospect's service and interest, so as to absolve owner from liability for resulting injuries to another.
5. AUTOMOBILES.
An automobile owner, whose agent turned over automobile to prospective purchaser's sons for demonstration purposes, is not liable for injuries to another because of negligent operation thereof by one of such sons on theory that owner's liability, which would have arisen had agent been present and in control of automobile when injury occurred, cannot be escaped because of his act in absenting himself, as vehicle was in operation for or in behalf of prospective purchaser, not owner.
6. AUTOMOBILES.
An automobile dealer held not liable for personal injuries to another and damage to his automobile in collision with automobile negligently operated by prospective purchaser's son, to whom dealer's salesman delivered it for demonstration purposes.
APPEAL from the circuit court of Harrison county; HON. L.C. CORBAN, Judge.
Eaton Eaton, of Gulfport, for appellant.
Appellant insists that Watts, who was the servant of appellee, was acting in furtherance of the master's business in turning the car over to the Colemans, even if it be taken as a fact that he had instructions to go with them. Furthermore, if he had such instructions and violated them, he was guilty of negligence, and if this negligence was the proximate cause of appellant's damages appellee would be liable.
Slaughter v. Holsomback, 147 So. 318, 166 Miss. 643.
Unquestionably if Watts had been in the car when Hosea Coleman was driving across the street intersection at 60 miles an hour and crashed into Mr. Roy, appellee would be liable. The Slaughter case settles that. But, it is argued, if Watts, instead of being in the car with Coleman, where he might have exercised some restraint upon his driving, negligently absents himself and thus renders it impossible for any restraint to exist, there is no liability. For Watts wholly to absent himself from any possibility of control of the driver is certainly a greater degree of negligence than would have been his failure to control the operation of the car if he had been present. So appellee is reduced to the utterly untenable position that a greater degree of negligence is an immunity, where a less degree, leading to the same result as the greater, is a liability.
Whether Watts' negligence was the proximate cause of appellant's injury was certainly a question for the jury if it does not affirmatively so appear as a matter of law. Most assuredly if a servant, when present, by negligently failing to control a reckless driver to whom he has turned over the wheel, renders the master liable, it follows that if a servant negligently fails to exercise the same character of control by absenting himself, the master is also liable.
The Slaughter case also disposes of the question whether Watts was acting in the furtherance of the master's business. Bo Hicks, Mrs. Slaughter's chauffeur, was directed to drive her son to town. Mrs. Slaughter was simply accomodating her son, and Hicks was the servant through whom the accomodation was to be rendered. But Watts was endeavoring to sell for the master a car the master wanted sold. Obviously, the master would have benefited from the sale. The court said in respect to Mrs. Slaughter and Bo Hicks: "The doctrine of respondeat superior is that he who acts through another is himself the actor. Mrs. Slaughter was the master. Hicks, the chauffeur, was the servant. The master's business was to transport the son to a destination in the town of Meridian selected by him." Here the master's business was the sale of cars, and Watts was the instrumentality through which the sale was to be made.
If appellant's contention be sustained, the driver of a truck or bus who had been directed to do all the driving could abandon it, call someone else to drive it, and there would be no liability for negligent driving.
The Slaughter case seems to settle the legal questions presented here, but a few more decisions may prove helpful.
So. Bell T. T. Co. v. Quick, 149 So. 107, 167 Miss. 438; Winn v. Holiday, 69 So. 685, 109 Miss. 691; Primos v. Gulfport Laundry Cleaning Co., 128 So. 507, 157 Miss. 770; Restatement of the Laws, Sec. 241, subject "Agency."
Leathers, Wallace Greaves, of Gulfport, for appellee.
Owner is not liable for negligence of prospective purchaser, or his representative, when driving automobile to ascertain for himself how it runs, when not accompanied by owner or his agent, in the absence of the element of known incompetency of driver.
Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Cruse-Crawford Mfg. Co. v. Rucker (Ala.), 123 So. 897; Emery v. McCombs, 167 N.Y.S. 474; Flaherty v. Helfont, 123 Me. 134, 122 A. 180; Goodrich v. Musgrave Fence Auto Co., 154 Iowa 637, 135 N.W. 58; Graham v. American Employers' Ins. Co., etc. (La.), 171 So. 471, 177 So. 830; Huddy Enc. of Auto. Law, Vols. 7-8, pp. 278-280; Massony et al. v. Truett Nash Motor Co., Inc. (La.), 177 So. 829; Sharples v. Watson, 157 Miss. 239, 127 So. 779; 2 Blashfield Enc. of Auto. Law, pp. 1320-1322; 2 Berry on Automobiles (6 Ed.), p. 1200; 2 C.J.S. 1027.
Under Mississippi law an automobile is not a dangerous instrumentality per se.
Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Woods v. Clements, 113 Miss. 720, 74 So. 422, 75 So. 119.
Doctrine of respondeat superior rests upon contractual relations of principal and agent or master and servant, and principal or master liable only for negligent acts of agent or servant committed while acting within scope of employment, and in furtherance of the business of principal or master.
Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Woods v. Clements, 113 Miss. 720, 74 So. 422, 75 So. 119.
Relations of principal and agent and/or master and servant arise out of contract, express or implied.
Gulfport Mississippi Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.
Right of principal and/or master to control services of agent and/or servant is essential to the relation of principal and agent and/or master and servant.
Cook v. Wright, 177 Miss. 644, 171 So. 686; 2 C.J.S. 1027; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 74 Miss. 737, 165 So. 546.
Authority of agent and/or servant to bind principal and/or master rests upon powers conferred by principal and/or master.
Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Dahnke-Walker Milling Co. v. T.J. Phillips Sons, 117 Miss. 204, 78 So. 6; Gulfport Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340.
Appellee's salesman was not acting within scope of employment and in furtherance of appellee's business in delivery of automobile to Reverend Charles Coleman, in view of instructions given him by appellee not to do so.
Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Dahnke-Walker Milling Co. v. T.J. Phillips Sons, 117 Miss. 204, 78 So. 6; Gulfport Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340.
Even if appellee's salesman was acting within scope of employment and in furtherance of appellee's business in the delivery of the automobile to Reverend Charles Coleman, neither relation of principal and agent nor master and servant are thereby created between appellee and Reverend Charles Coleman, or his son George, or his son Hosea, who was driving automobile at time of accident.
Cook v. Wright, 177 Miss. 644, 171 So. 686; Gulfport Miss. Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.
No right of control of use of automobile by Reverend Charles Coleman, or his son George, or his son Hosea, having been reserved by appellee, and there being no showing that either one of them was a known incompetent driver, appellee is not liable to the appellant.
Delivery of appellee's automobile to Reverend Charles Coleman by appellee's salesman amounted to no more than an unauthorized lending of it, which cannot create liability on appellee, absence showing that either Reverend Charles Coleman, his son George, or his son Hosea was a known incompetent person to have control over automobile.
Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Culpepper v. Holmes, 170 Miss. 239, 154 So. 726; Sharples v. Watson, 157 Miss. 239, 127 So. 779; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258.
Argued orally by B.E. Eaton, for appellant, and by P.D. Greaves, for appellee.
Appellee is a dealer in automobiles, including used cars. Watts was a salesman in appellee's employ. Watts had sought to induce one Charles Coleman to purchase a certain second-hand Dodge sedan, and Coleman had personally tested the car but found it unsatisfactory. Appellee thereupon made some repairs or improvements upon the vehicle and shortly thereafter, on February 8, 1939, Watts took it to the home of Coleman in the effort to renew the negotiations for its sale to Coleman. The latter stated that he was busy at that time and could not give any present attention to the matter and stated, moreover, that he was no longer interested as a prospective purchaser; but as to this, appellant says in his brief that "Charles Coleman's testimony shows that he was interested in buying the car but that, as a shrewd buyer, he was assuming an indifferent attitude that Watts however well understood."
Watts so understanding, suggested that one of Coleman's sons drive Watts and the car back to appellee's place of business, and that thereupon the son would return the car to Coleman's home, and that then Coleman's two sons, one or both, if Coleman chose not to do so, should test or try out the car. Coleman stated in response to this suggestion that Watts could do as he pleased about the matter. One of Coleman's sons then drove Watts to appellee's place, and in accordance with the stated arrangement, the car was turned over to the son who took it immediately to Coleman's home. Soon thereafter the two sons of Coleman, with their father's knowledge, got in the car, one of them driving, and in another town about twelve miles distant, the car, while being negligently operated, collided with appellant's automobile, injuring appellant personally and also damaging his automobile.
Appellant instituted his action for damages against the owner of the automobile on the theory or theories hereinafter mentioned that the owner was liable for the negligence of the driver. On the trial the court granted a peremptory instruction for the owner defendant; hence this appeal.
We have not here a case where the owner's employe or sales agent was riding in the car at the time of the injury; neither is there present a situation where the owner or his agent was negligent in turning over the car to a person or persons who were known to be incompetent or reckless, or where the owner or his agent had such knowledge as to put them, or either of them, on notice that the person or persons into whose charge it was placed were incompetent or reckless. In what we shall hereafter say, cases of that kind are laid entirely to one side as not being here involved. Appellant does say that the manner in which the injury occurred shows that the driver was incompetent and reckless, but this, if in itself true, falls short of showing that the owner or his agent had any previous notice thereof.
In order that a dealer in chattels of a certain kind may be able to make a sale, he must convince the prospective purchaser that it is to the interest of the prospect to make a purchase of that chattel. And in order that a prospective purchaser may be better enabled to become convinced that it is to his interest to buy, it is within the lawful right of the owner to deliver the chattel into the hands and exclusive control of the prospective purchaser, or the agents or representatives of the prospect for the purposes of test and demonstration by actual use, as fully as any owner has the right to lend his chattel for the accommodation of a lendee. And if it were practically certain that in every case the result of such actual use in the test or demonstration would result in a sale, it could be said with reason that what is done during the course of the test or demonstration would be in the interest or in the behalf of the seller and that he would be liable for any negligent act resulting in injury during that time.
But often the test or demonstration by the prospective purchaser will result in convincing him that it is not to his interest to make the purchase, thereby disserving the interest of the prospective seller. The conclusion is inescapable, therefore, that the dominant interest which is being served when the prospective purchaser has the chattel in his possession and under his own control for the purposes of test and demonstration, is the interest of the prospective purchaser himself, an interest which for the time being stands in opposition to that of the prospective seller, and in consequence that there is no such relationship between the owner and the prospect as will make the owner liable for the acts of the prospect in the use of the chattel during the course of the test or demonstration and after the delivery of the chattel into the possession, and under the control, of the prospective purchaser for the stated purpose. It is a fact well known that there are many persons who would not purchase an automobile, and especially a second-hand automobile, unless and until it has been tested either by themselves personally or by some person in whose judgment they have particular confidence, all this to be entirely away from and out of the presence of the dealer or his agent and their persuasive dealer's talk.
Accordingly, the great weight of authority is that the owner of an automobile, although a dealer, is not liable for the negligence of a prospective purchaser when the latter is driving the automobile to ascertain its qualities, and when not accompanied by the owner or his agent or servant, and when there was nothing to put the owner on notice that the prospective purchaser was a negligent or incompetent driver.
The reasoning by which the courts have arrived at this conclusion has not been uniformly the same, but the principal authorities are collected and cited in Bertrand v. Mutual Motor Co. (Tex. Civ. App.), 38 S.W.2d 417; in Graham v. American, etc., Ins. Co. (La. App.), 171 So. 471, and in Mosby v. Kimball, 345 Ill. 420, 178 N.E. 66, and an examination of them will disclose that at last they rest in substance upon the considerations which are set forth in preceding paragraphs of the present opinion.
It is argued here, however, that this is not a case where the injury occurred while the prospective purchaser was himself driving the automobile, but is where a son of the prospective purchaser was driving and where the owner's authorized agent had delivered the car to another son of the prospect with the suggestion that this son and the son who was actually driving at the time of the injury "should try it out." The argument is that the owner was thereby using the sons of the prospective buyer as the agents of the owner in the business of making the sale, — that it was to be through the intermediation of the sons that a sale might possibly be made to the father and that the sons should be considered the agents or representatives of the owner rather than of the prospective purchaser.
It is not intimated that the sons, either or both, were to receive any pay by way of commissions or otherwise in the event of a sale to the father, and in the statement of the facts it has already been mentioned that by the assent of the father and for the express purposes of demonstration for his satisfaction, the automobile was delivered at the home of the father, the owner having parted with control, and that it was subsequent to this that the sons took the car with the knowledge of the father and in its negligent operation inflicted the injury.
The case which seems nearest to the facts here presented and wherein substantially the same argument was made is Mosby v. Kimball, supra. In that case the motor truck was, with the knowledge and consent of the prospective purchaser, left by the owner's agent in charge of a brother-in-law of the prospect with the understanding that the brother-in-law should try out the truck, the owner's agent surrendering all control to the brother-in-law for that purpose; and later, through the negligence of the latter, the injury occurred. The court held that the brother-in-law was not the agent or representative of the owner, and that the owner should have had a directed verdict.
In that case, as in many of these cases, the element of control is referred to as a deciding factor; that when a motor vehicle is placed with the prospect, or by the consent of the prospect, with a person who is reasonably to be deemed more interested in the welfare of the prospective purchaser than in that of the prospective seller, for purposes of test or demonstration, the details of the test or demonstration being left solely under the control or under the supervision of the prospect or those more interested in him, the owner is not to be held liable for what happens subsequently in the court of the demonstration, since he retained no right to control what would happen therein. In Graham v. American, etc., Ins. Co., supra, the distinguishing feature, as a test of liability against the owner, was said to be whether the driver and the car at the time of the injury were under the control and direction of the owner.
But the bare proposition of actual physical control at the moment of injury is not always determinative of legal liability — control as respects legal responsibility often runs beyond actual physical control. The test is: Who at the time had the right of control and this gets us back to the question in whose present interest or service is the actual control being exercised; and thus we arrive at the concrete proposition that where the automobile has been actually delivered to or for the prospect and all control over its physical operations has been surrendered by the owner, and the object thence was by a test or demonstration to convince the prospect that it would be to his interest to make the purchase, anything done in the demonstration and test, by the prospect or by another person with his assent, must be ascribed to the service and interest of the prospect and not of the owner.
Appellant argues finally that the duty of the owner's agent, Watts, was to demonstrate the car himself; that it was his duty to keep the automobile within his presence and under his own control; that if he had been present and in control when the injury occurred, the owner would have been liable; that by absenting himself a liability cannot be escaped which would have existed had he been present. Appellant says that the case is similar to that where a taxicab driver turns the vehicle over to another to drive in his place. But in the latter case the taxicab would still be in operation for the owner, while in the case of a motor vehicle turned over for demonstration purposes to a prospective purchaser or with the consent and approval of the prospect to one for him, more interested in the welfare of the prospect than of the owner, the vehicle would be thereafter in operation for or in behalf of the prospect and not of the owner.
Upon a review of all the authorities, we have concluded that the action of the circuit judge in granting the peremptory charge was correct, and we do not think that Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318, upon which appellant chiefly relies, is sufficiently in point to make it authority here.
Affirmed.