Opinion
No. 35507.
February 14, 1944. Suggestion of Error Overruled April 24, 1944.
1. AUTOMOBILES.
Where automobile driver, driving about 50 or 60 miles an hour, on being blinded by lights of on-coming automobile, was unable to see a wagon on his side of road in time to stop, and to avoid collision with on-coming automobile, passed wagon on the right, and a pole sticking out from the wagon injured automobile occupant, driver was guilty of simple but not of willful and wanton negligence.
2. AUTOMOBILES.
As respects employer's liability for injuries to automobile occupant due to employee's simple negligence while driving, occupant would be a "guest" or "invitee" of employer only if, when employee invited occupant to accompany the employee, the employee was acting on behalf of the employer with authority from the employer.
3. AUTOMOBILES.
Where, upon being authorized by employer to find some one to go with employee on an automobile trip for employer, employee induced two persons to go and reported to employer that he was ready to go, employee's authority to invite other persons was at an end, and a person subsequently invited was employee's and not employer's "guest" for whose injuries, due to employee's simple negligence while driving the automobile, the employer was not liable.
APPEAL from the circuit court of Bolivar county, HON.E.H. GREEN, Judge.
Brewer Sisson, of Clarksdale, for appellant.
The trial court should have peremptorily instructed the jury to find for appellant.
It is submitted that Mangalardi, the driver of the car, at the time of the accident was not on any business for appellant. It is true that Mangalardi was employed by appellant to bill out cotton, keep books, and do general office work, but the rugs in question which had been returned to Memphis were the property of the wife of appellant and the returning of the rugs to Memphis was simply an accommodation to her. The family purpose doctrine or the dangerous instrumentality doctrine do not apply in Mississippi. Before appellant can be held liable Mangalardi must have been driving the automobile for the benefit of appellant, and at his express request, unless appellant, the owner of the car, was negligent in permitting Mangalardi to drive the automobile, and there is no contention here that appellant was guilty of any negligence in permitting Mangalardi to drive the car.
Smith v. Dauber, 155 Miss. 694, 125 So. 102; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726; Dement et al. v. Summer, 175 Miss. 290, 165 So. 791; Self v. King, 124 Miss. 874, 87 So. 489; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809.
Assuming for the sake of argument that Mangalardi was the agent of appellant and that at the time of the accident he was on business for his master, still there can be no liability unless Mangalardi was guilty of willful and wanton negligence. Mangalardi was not guilty of willful and wanton negligence.
Watson v. Holiman, 169 Miss. 585, 153 So. 669.
See also Trico Coffee Co. v. Clemens, 168 Miss. 748-755, 151 So. 175; Sternberg Dredging Co. v. Screws, 175 Miss. 383, 166 So. 754; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; McWhorter v. Draughn, 134 Miss. 247, 98 So. 597, 137 Miss. 515, 102 So. 567.
At most, Mangalardi was guilty of a mere tort, and if we are correct in assuming that there must have been willfulness and wantonness before appellee is entitled to a recovery, then the lower court erred in refusing the peremptory instruction for appellant.
If the driver of a truck, though regularly employed by the owner for that purpose, without authority to invite the injured party to ride on the truck, did nevertheless extend such an invitation and the person got upon the truck in response to such invitation, he would not be an invitee but a trespasser thereon, and when sued the defendant owner of the truck could be held only for the willfulness and wantonness of the driver resulting in injury to the plaintiff as a proximate cause thereof.
Watson v. Holiman, supra; Trico Coffee Co. v. Clemens, supra; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Rogers et al. v. Lewis (Miss.), 144 So. 373; Lawson v. Duncan, 173 S.C. 34, 174 S.E. 495.
Roberson Luckett, of Clarksdale, and John T. Smith, of Cleveland, for appellee.
The proof, in our opinion, shows that appellee was an invitee of a servant authorized, at least impliedly, to invite him to make the trip to Memphis and return. That being true, appellant is unquestionably liable to him because it is undisputed that appellant's servant did not exercise reasonable care on the occasion of the accident which resulted in appellee's injuries.
Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Green v. Maddox, 168 Miss. 171, 149 So. 882, 151 So. 160; Rogers et al. v. Lewis et al. (Miss.), 144 So. 373; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175; Watson v. Holiman, 169 Miss. 585, 153 So. 669.
Mangalardi was driving appellant's car, at the time of the accident, at a rate of speed which did not permit him to avoid a collision with the wagon when it came under his observation; in fact, he was then driving appellant's car at the rate of a mile a minute. He was drivnig at that speed despite the fact that at that time he was so blinded by the lights of an oncoming car that he couldn't see the wagon until he was within forty feet of it. In so doing, he was grossly negligent.
Frazier v. Hull, 157 Miss. 303, 127 So. 775; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264; Gulf S.I.R. Co. v. Cole, 101 Miss. 411, 58 So. 208; Code of 1930, Secs. 512, 1455, 5569; Hemingway's Code 1917, Sec. 5775; Laws of 1916, Ch. 116; Laws of 1938, Ch. 220.
It is immaterial whether the passenger was an invitee or a trespasser, because even if the passenger was a trespasser the jury was instructed that, unless the proximate cause of the injury was the willful and wanton negligence of the servant, the verdict should be for the master, and the jury, upon ample evidence to sustain the verdict, found that the proximate cause of the accident was the willful and wanton negligence of the servant, who was then and there unquestionably engaged in and about the master's business.
Watson v. Holiman, supra.
It is the general rule that if a servant, acting in the scope of his employment, is authorized to invite persons to ride in the automobile, and plaintiff is in the vehicle in response to an invitation extended by the driver, the master is liable to plaintiff for any injury received, due to the negligence of the driver.
Green v. Maddox, 168 Miss. 171, 149 So. 882, 151 So. 160; Dyer v. McCorkle, 208 Cal. 216, 280 P. 965; Edmond v. Fallon, 56 R.I. 419, 186 A. 15; Kirklin v. Standard Coffee Co. (Tex.), 114 S.W.2d 263; Lawson v. Duncan, 173 S.C. 34, 174 S.E. 495; Paiewonsky v. Joffe, 101 N.J.L. 521, 129 A. 142, 40 A.L.R. 1335; Voshell v. Freihofer Baking Co., 5 N.J. Misc. 270, 136 A. 328; Willi v. Schaefer Hitchcock Co. (Idaho), 25 P.2d 167; 5 Blashfield's Cyclopedia of Automobile Law and Practice, Sec. 3016.
It is negligence to drive an automobile, at night, at a greater rate of speed than will permit the driver thereof to avoid injury to persons or vehicles when they come within the range of the lights on the front of the automobile.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Terry v. Smylie, 161 Miss. 31, 133 So. 662.
Argued orally by Ed Brewer, for appellant, and by Semmes Luckett, for appellee.
This appeal is from a judgment for damages, and one of the appellant's assignments of error is that the court below erred in not granting his request for a directed verdict in his favor. The appellant was in business at Shelby, Mississippi, and there directed his employee, Mangalardi, to go to Memphis on an errand for him, and to use and drive his automobile for that purpose. Mangalardi did this, taking with him three others, Malatesta, Griffin, and Hively, the appellee. On their return from Memphis travelling south, they arrived at the place of appellee's injury in Mississippi after dark, with Mangalardi at the wheel of the automobile, the headlights of which were such as the statute requires and were burning brightly. The automobile was then travelling about 50 or 60 miles an hour. It was equipped with a radio, which was then turned on. The lights of an automobile coming from the south obscured Mangalardi's vision to the extent that he did not see a horse-drawn wagon travelling south in front of him, without lights, on his side of the road until he was about 40 feet from it. He could not then stop his automobile before reaching the wagon, and he could not pass it on the left because of the automobile coming from the south, so he checked, for the first time, the speed of his automobile and turned to the right, passed the wagon, and no harm would have resulted therefrom but for the fact that a pole (which Mangalardi had not seen) was sticking out from the wagon which went through the glass ventilator of the front door and hit Charles (Hively) who was on the back seat. The owner of the wagon has paid the appellee $5,000, and has received from the appellee a covenant not to sue him. This action is to recover from the appellant the remainder of the damage sustained by the appellee.
In support of the refusal of the court below to grant the appellant's request for a directed verdict, counsel for the appellee say: (1) the appellee was the appellant's guest at the time of the injury and that the negligence of Mangalardi, the appellant's servant, contributed to his being injured by the pole sticking out from the wagon; and (2) that if the appellee was not a guest of the appellant, the negligence of his servant, Mangalardi, which contributed to his injury, was wilful and wanton, and therefore the appellant is liable therefor. Without pausing to analyze the evidence, which speaks for itself, we will say that a jury would be warranted in finding therefrom that Mangalardi was guilty of simple, but not of wilful and wanton, negligence in the driving of the automobile at the time of appellee's injury. This disposes of the second of appellee's contentions, and relieves us of the necessity of determining what appellant's liability vel non would be had Mangalardi been guilty of wilful and wanton negligence.
Was the appellee a guest or invitee of the appellant? He was if, but not unless, when he was invited by Mangalardi to accompany him to Memphis, Mangalardi was acting for and on behalf of the appellant with authority, express or implied, from the appellant so to do. The evidence as to this is as follows:
Mangalardi testified that when the appellant directed him to go to Memphis "He asked me did I know anybody wanted to go to Memphis. I told him, no, I didn't, but I could find somebody, and I went and got a couple of boys to go with me." These boys were Paul Malatesta and Lester Griffin. When asked if he started to Memphis immediately after picking up Malatesta and Griffin he answered "No, sir, we went by Mr. Thomas' office, told him I was ready to go; I told him then I was ready to go." He did not say whether he told the appellant whom he had with him in the automobile. After leaving the appellant and beginning his journey to Memphis, Mangalardi saw the appellee, a friend of his, stopped his automobile, and invited him to go to Memphis with him, which invitation the appellee accepted. The appellant denied that he told Mangalardi to find somebody to go to Memphis with him, or that he knew Mangalardi was taking anybody with him. He said, however, that had he been asked he would not have objected to Mangalardi's taking one person with him.
Malatesta and Griffin may have been guests of the appellant under Mangalardi's testimony, as to which we express no opinion, but the appellee clearly was not. Assuming Mangalardi's testimony to be true, when in obedience to the appellant's instruction to find some one to go to Memphis with him, he induced Malatesta and Griffin to do so and reported to the appellant that he was ready to go, his authority to invite other persons to accompany him to Memphis as a guest of the appellant was at an end; consequently when the appellee accepted Mangalardi's invitation to accompany him to Memphis, he became his and not the appellant's guest. The appellant's request for a directed verdict should have been granted.
Reversed and judgment here for the appellant.