No. 24048 | Miss. | Oct 6, 1924
Lead Opinion
delivered the opinion of the court.
Appellee, A. J. Daniel, sued appellant, L. B. Anderson,' in the circuit court of Monroe county for damages for an injury received by appellee at the hands of a sixteen year old son of appellant, for which the latter was sought to
Appellant’s sixteen year old son was driving appellant’s automobile on a public highway, and ran into appellee, breaking his collar bone and- otherwise seriously injuring;him. Appellee’s evidence showed his injury was caused by the negligence of appellant’s son in the driving of the car. The jury was amply justified by the evidence in so finding in their verdict. Appellant’s principal complaint at the judgment rendered against him is that, on the case made by the pleadings and the evidence, the trial court should have directed a verdict in his favor: His theory is that, conceding appellee’s case so far as the son of appellant is concerned, still appellee was not entitled to recover because he failed to make a case of liability on the part of appellant for the act of his son; while appellee’s theory is that the judgment was justified upon the ground, among others, that appellant, knowing that his son was a reckless driver and was in the habit of using his car, became responsible for his act because he permitted him to use the car. Appellant argues that the soundness of the principle upon which appellee’s theory is founded may be conceded, and still the evidence is insufficient to make an issue of fact for the jury under it. Appellant contends further that, even though it be true that appellant’s son was a reckless driver, and appellant knew it, and still permitted him to use his car, nevertheless there can be no recovery on that ground, because no such case is stated in appellee’s declaration.
When an automobile is driven by a minor child of the owner with the latter ’s knowledge or permission, .and such child.is a reckless driver, and by reason thereof injures another, and liis incompetenoy is known to the parent, the latter is liable upon the ground of negligently permitting his child to operate the car. The parent, who has a right to the services of his minor child and is
Was there sufficient evidence to go to the jury on this issue? Appellant contends there was no direct evidence showing that he knew that his son was using his car,' or that his son was a reckless driver. It is true that no witness testified that appellant knew that at the time of the injury his son was operating the car. Nor did any witness testify that appellant knew that his son was a reckless driver. But-appellee’s evidence by several witnesses was to the effect that appellant’s son constituted one of appellant’s household, that he was often seen by the neighbors driving appellant’s car, and that he was not only a reckless driver but had that reputation in the neighborhood where appellant resided and where the injury complained of occurred. This evidence in our opinion was sufficient to g;o to the jury on the question whether appellant knew that his son was in the habit of driving his car, and also on the question whether appellant knew that his son was a reckless driver.
Appellant argues, further, that there could be no recovery on that ground, because appellee’s declaration states no such case. Appellee, answering that contention, says that it is stated in the second count of the declaration, even though it be imperfectly therein set out as contended for by appellant, and that the judgment is good under the statute of jeofails. The portion of the second count of the declaration upon which appellee relies as sufficiently setting out this ground of recovery is in this language:
“For this, also, to-wit, because defendant, L. B. Anderson, intrusted his Ford and disabled car without brakes to his minor son, sixteen to seventeen years of age, as his agent to drive and direct said car on a special mission and task assigned him by his father, whom the said Anderson knew was careless and reckless in the use
Appellant pleaded to the declaration. He failed to raise the question of its sufficiency either by demurrer or by objection to appellee’s evidence on the ground of variance. It may be conceded that the count in question insufficiently sets out a cause of action. Nevertheless the defect is one of form and not of substance. It therein distinctly appears that appellee relied on, as a part of his ground for recovery, the fact, as therein alleged, that the son was a reckless driver, and was in the habit of driving-appellant’s car, which facts were known to appellant. But, conceding that this ground of recovery is inadequately set out in the declaration, it is clear that the question cannot now be raised on appeal under the statute of jeofails (section 868, Code of 1906; section 596, Hemingway’s Code)-, which provides, among other things, that no judgment shall be reversed after verdict for any defect of form in the declaration, or because of any insufficient statement of the cause of action in the declaration. Y. & M. V. R. R. Co. v. Schraag, 84 Miss. 125" court="Miss." date_filed="1904-03-15" href="https://app.midpage.ai/document/yazoo--mississippi-valley-railroad-v-schraag-7989141?utm_source=webapp" opinion_id="7989141">84 Miss. 125, 36 So. 193.
The conclusion we have reached renders it unnecessary to decide the other question mainly argued. The additional assignments of error, covering minor questions, we do not think call for a discussion. It is sufficient to sav that we find no merit in any of them.
Affirmed.
Dissenting Opinion
(dissenting).
I am of the opinion, in which Judge Cook concurs, that testimony to the effect that the appellant’s son was, and had the reputation of being, a reckless driver, is insufficient to warrant the jury in finding that the appellant knew that his son was a reckless driver when he permitted him to use the automobile. If this reputation of his son had been proved to have been known to the appellant a different question would arise, but, as it is, his liability has been permitted to rest not on his knowledge of his son’s reckless driving but on his son’s reputation therefor.
It seems reasonably clear from the evidence that what the witnesses meant when they said that the son had the reputation of being a reckless driver was, as some of them expressly stated, that he had the reputation of driving fast.