Opinion
No. 30934.
March 5, 1934. Suggestion of Error Overruled April 2, 1934.
1. APPEAL AND ERROR.
General verdict for plaintiff, whose declaration contained two counts merely stating differences in detail leading to same liability, is sufficient, if sustained under either count, in absence of motion or request on point in trial court.
2. AUTOMOBILES.
Automobile owner, permitting its use by person he knows or should know to be reckless or incompetent driver, is liable for injuries naturally and probably resulting form such driver's recklessness or incompetency.
3. NEGLIGENCE.
One supplying chattel for use of another, who is likely, as owner knows or should know, to use it in manner involving unreasonable risk of bodily harm to himself and others, whom owner should expect to share in, or be in vicinity of its use, is liable for resulting bodily harm to them.
4. AUTOMOBILES.
Employers knowing that employee, at whose disposal they put automobile, was occasional drinker, had actual knowledge putting them on inquiry leading to full knowledge of his general reputation as habitual drunkard, and hence were liable for death of boy, whom he invited while intoxicated to ride with him, as proximate result of such condition.
APPEAL from Circuit Court of Warren County.
Brunini Hirsch, of Vicksburg, for appellants, Nathan Levy and Samuel Albrecht.
Nathan Levy Company rests upon the assumption that no employer can be held liable for the acts of an employee while he is off duty during the night and engaged in acts not about and in furtherance of his master's business and not about his appointed duties. What an employee does, after his day's work is performed, cannot be within the control of the employer, and his wrongdoings during that time cannot charge liability upon the master.
It is clear from the evidence in this record that Hodgeson had no right, nor was it within any of his appointed duties, to take that car out of the garage at midnight, in a sober or an intoxicated condition, either for the purpose of buying cotton at that time of the night or for his own pleasure.
The testimony of the policeman, and all of the other witnesses, is to the effect that Hodgeson was seen drunk at nighttime. Not a one of them testified that they had seen him drunk during the hours of his work; and none of them testified that he had any such reputation — that is, of being drunk during the hours of his work.
At the time of the injury to young Clifton McMullen, Hodgeson was not about his master's business.
McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405.
A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor.
6 Labatt's Master Servant (2 Ed.), p. 6704; Davis v. Price, 133 Miss. 236, 97 So. 557; Western Union Telegraph Co. v. Stacy, 162 Miss. 286, 139 So. 604; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Isaacs v. Prince Wilds, 133 Miss. 195, 97 So. 558; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258.
Thames Thames, of Vicksburg, for appellant, A.H. Hodgeson.
The trial court erred in refusing a directed verdict in favor of A.H. Hodgeson.
Where negligence is charged, the negligence must be proven, and in the event that the negligence is not proven, it is the duty of the trial court to direct a verdict for the defendant.
We are cognizant of the fact that our Supreme Court has repeatedly held that while an automobile is not a dangerous instrumentality per se, that an automobile driven by an adult drinking to excess is a dangerous instrumentality. Our views are not in conflict with this rule of law, but we are further cognizant of the fact that our court, and the courts of practically all of the other jurisdictions, have held that where drunkenness is relied upon to show negligence, it must be clearly shown that the drunkenness was the proximate cause of the injury.
Chaney Culkin, R.M. Kelly and W.W. Ramsey, all of Vicksburg, for appellee.
The fact that Hodgeson may have stopped on the way to the negro store for the purpose of buying a drink of whiskey, or for the purpose of drinking a coca-cola, or for any other purpose, would not change or, in any manner, alter the well established rule, if he was engaged partly on a mission for his employers at the time.
Primos v. Gulfport Laundry Cleaning Co., 128 So. 507.
The fact that the predominant motive of the servant is to benefit himself or a third person, does not prevent the act from being in the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is liable if the act otherwise is within the service.
If the act complained of was in furtherance of the master's business, and within the course of the servant's employment, the master will be liable therefor, although it was in excess of the authority conferred by the master on the servant and was wilfully and maliciously done.
39 C.J. 1285; Richberger v. Exp. Co., 73 Miss. 161, 18 So. 922, 31 L.R.A. 390, 55 Am. St. Rep. 522; Natchez, C. M.R.R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Hines v. Green, 125 Miss. 476, 87 So. 649; Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Alden Mills et al. v. Pendergraft, 115 So. 713; Loper v. Yazoo Mississippi Valley Railroad Co., 145 So. 743; Southern Bell Telephone Telegraph Co. et al. v. Quick, 149 So. 107; McLaurin v. McLaurin Furniture Co., 146 So. 877.
We believe, and respectfully submit to the court, that the deceased child should have been treated as an invitee. However, the case was tried upon the theory that he was a trespasser, or a licensee, and was submitted to the court upon this theory and this theory alone in the first count of the declaration.
Where a trespasser is actually discovered in a position or situation of peril, there is a duty to exercise ordinary care to avoid injuring him, which duty may be breached either by active conduct or by omission to act.
45 C.J. 749, sec. 145.
Where the presence of a licensee is known, there is a duty to use reasonable care to avoid injuring him, at least by any affirmative acts, the duty toward such a licensee being the same as with respect to an invitee.
45 C.J., p. 803, sec. 207, p. 788, sec. 194; Allen v. Yazoo Mississippi Valley Railroad Co., 71 So. 386; Lepnick v. Gaddis, 16 So. 213.
The second count of the declaration was based upon the idea that Hodgeson, being an habitual drunkard, it was negligence for the appellants, Levy and Albrecht, to permit him to use the car. The evidence discloses abundantly that he was on duty at the time he killed the boy. Assuming, however, that he was not on duty, he was an habitual drunkard, and the car should never have been entrusted in his care.
Anderson v. Daniel, 101 So. 498; Herrman v. Maley, 132 So. 541; Slaughter v. Holsomback, 147 So. 318.
Argued orally by J.B. Brunini and Jas. D. Thames, for appellant, and by R.M. Kelly and A.A. Chaney, for appellee.
Appellee brought suit against appellants for damages for the wrongful death of the minor son of appellee, and in the trial recovered judgment in the sum of nine thousand dollars. The declaration is in two counts. The first count charged that the defendants, Nathan Levy and S. Albrecht, partners, had employed their codefendant, A.H. Hodgeson, as a servant in the general work of the firm, and that while the said servant was then and there engaged in and about the business of his employers he so negligently and recklessly handled the automobile which he was driving and with which his employers had furnished him that as a proximate consequence thereof appellee's decedent, an invited guest, was severely injured, from which injury he soon thereafter died. The second count charged that the said employee was frequently intoxicated on the streets, bore the reputation of being an habitual drunkard, and his said employers either knew, or by the exercise of due care should have known, that the said servant was in the habit of frequently getting drunk; nevertheless, that said employers had furnished him with an automobile to use at any time he desired, and while so using said automobile and while drunk he had invited appellee's decedent, a boy of about fifteen years of age, to ride with him, and immediately thereafter the servant so negligently and recklessly drove the said automobile as to result in the death of the boy.
The principal argument in the briefs is directed upon the first count. We lay aside that count, since, in our opinion, the judgment must be sustained upon the second count. There was a general verdict for the plaintiff. Within the usual rule dealing with general verdicts there is here but one cause of action; the two counts state differences in detail leading to exactly the same liability. In such cases, in the absence of any motion or request in the trial court bearing upon the point, a general verdict is sufficient if sustained under either count. See, for instance, Goins v. State, 155 Miss. 662, 124 So. 785.
In Anderson v. Daniel, 136 Miss. 456, 101 So. 498, Herrman v. Maley, 159 Miss. 538, 132 So. 541, and in subsequent cases, this court has become definitely committed to the principle that when the owner of an automobile permits its use by a person known to the owner to be a reckless or incompetent driver, or where by the exercise of reasonable care the owner could or should have so known, the owner is liable for all such injuries as are the natural and probable consequences of the recklessness or incompetency of the said driver while using the automobile so furnished; and in Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318, this court further declared that a drunken driver is an incompetent driver, and that when an owner furnishes an automobile to another whom the owner knew or ought to have known was liable to be drunk while driving, the owner is responsible for an injury which results as a proximate consequence thereof. The broad principle upon which this liability is founded is tersely and accurately stated as follows: "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them." Slaughter v. Holsomback, supra, 166 Miss. 656, 147 So. 318, 321.
The facts supported by competent evidence, both direct and circumstantial, and believed by the jury, as disclosed by their verdict, are that the employers actually knew that the employee "was occasionally a drinking man;" and the proof is, further, that while he did not get drunk in the daytime or while around the office of his employers, he did frequently get drunk in the evening and at night, and that he was known to the police force of the municipality, and to others who testified, as an habitual drunkard and that such was his general reputation. His employers had sufficient actual knowledge to put them upon inquiry which, if reasonably pursued, would have led to full knowledge. The employers put the automobile at the disposal of the servant and instructed the public garage at which the automobile was kept to allow the servant to have it whenever he called for it. He did call for it on the night in question, invited appellee's decedent to ride with him, and while in an intoxicated condition, and as a proximate result thereof, he ran into a fence and killed his invitee.
The employers contend here that they had instructed the employee not to use the automobile except during business hours, and that the decedent was the guest not of the owners of the car but solely of the drunken employee. We have already stated that the facts were sufficient to charge the employers with knowledge that the offending employee would frequently get drunk, and they are further charged with the contemplation of that which according to common knowledge a drunken man will likely do, that is, that such a man when under the influence of liquor will drive about in an automobile if one be available to him, without regard to orders; that he will seek company, that is, will invite another or others to ride with him; and that when driving in a drunken condition he is dangerous to all who are with him or in his vicinity. The case comes squarely within the broad general principal above quoted, with the result that the verdict and judgment must be affirmed.
Affirmed.