93 So. 2d 177 | Miss. | 1957
TMs sMt was instituted in a justice of the peace court in Rankin County against the appellant Wilba Glynn Carter and Ms father and mother, Mr. and Mrs. J. M. Carter, by the plaintiff G. H. Graves, to recover
On August 26, 1954, the said minor applied for a license to operate an automobile in the State of Misssissippi, when he was then under seventeen years of age, having been born on April 7, 1938. His said father and mother signed the application for the license. Section 8096, Code of 1942, Subsection (b) thereof reads in part as follows:
“Any negligence or wilful misconduct of minor under the age of seventeen years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly or severally liable with such minor for any damages caused by such negligence or wilful misconduct * * *
On December 16, 1955, the process for the defendants in the justice of the peace court reads as follows:
“THE STATE OF MISSISSIPPI,
“TO ANY LAWFUL OFFICER OF RANKIN COUNTY:
‘ ‘ This is to command you to summon WILBA GLYNN CARTER, J. M. CARTER, MRS. J. M. CARTER to appear before me, a Justice of the' Peace of said County, at my office on Jail Street, on the 16th day of January, 1956, at ten o’clock A. M., to answer the SUIT of G. H. GRAVES, ASSIGNEE OF J. C. MURRY and have there then this writ.
“Witness my hand, this 16th day of December, 1955.
“/s/ E. P. Stockstill, J. P.”
“This the 16th day of December A. D., 1955 “D. P. Gay den, Jr. Sheriff of Rankin County by J. R. Edwards, Jr. D. S.” A separate summons was duly and personally served on each of the adult defendants, Mr. and Mrs. J. M. Carter.
. Section 1863, Code of 1942, reads as follows: “If the defendant be an unmarried infant, the process shall he served on him personally, and upon his father or mother or guardian, if he have any in this state, but if he he married, process may be served as on an adult. If an unmarried infant be joined as codefendant with his father or mother or guardian, it shall not he sufficient to summon such infant and his father, or such infant and his mother, or such infant and his guardian, in one process, but one copy of the process shall he served on the infant personally and a copy served personally on such father or mother or guardian. ’ ’
The judgment rendered by the justice of the peace in favor of the plaintiff and against the three defendants, based upon the verdict of the jury, was for the sum of $136.75. The judgment of the justice of the peace recited, among other things, that plaintiff “appeared in open court and announced ready for trial”, and that the defendants “appeared in open court with their attorney and announced ready for trial”. The record further discloses without dispute that the minor defendant- was unmarried, and it is also to he conceded that no copy of the summons was served upon him. He signed the appeal bond along with his parents for the appeal to the Circuit Court of Rankin County. It does not ap
In the circuit court the minor defendant filed a plea to the jurisdiction of the court on the ground that he had not been legally served with process, and his father and mother filed an answer in their own rig'ht, denying the material allegations of the declaration of the plaintiff, and alleging that the application for the driver’s license executed by Wilba Glynn Carter shows that at the time and on the date of the alleged negligent act of the said Wilba Glynn Carter he was more than seventeen years old, and that the application signed by them was prepared and furnished by the Commissioner of Public Safety under the authority and provisions of the said Section 8096, Code of 1942, hereinbefore quoted from, and that the said minor being over the age of seventeen years at the time of the said alleged negligent act, his cosigners of the application were not liable there-' for under the provisions of the said statute. It is to be noted that subsection (b) of Section 8096, Code of 1942, provides that: “Any negligence or wilful misconduct of a minor under the age of seventeen years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license * * *” (Italics ours.)
In the case of Houston v. Holmes, 202 Miss. 300, 32 So. 2d 138, wherein it was sought to hold the father liable on an application which he had signed for his fifteen-year old son, but which license was renewed at the end of the one-year period without the signature of the father, and where the accident complained of occurred during the period for which the license was renewed, the Court held that the so-called family-purpose-doctrine has been definitely rejected in this State, and that there is no common-law liability against the parent; and if he is liable, it must be solely under the terms of the statute relied on. The Court went on to say that: “Statutes in
If the Court was without authority to enlarge upon the language of Section 8096, as above-stated in Houston v. Holmes, supra, it is true by the same reasoning that the Court cannot enlarge upon the plain language of the said section in the instant case, wherein the statute says that the negligence of a minor under the age of seventeen years when driving a motor vehicle shall be imputed to the person who signed the application, so as to include the negligence of a minor over seventeen years of age at the time of his alleged negligent act.
Moreover, the Court further stated in the case of Houston v. Holmes, supra, that: “There is another interesting approach to the question: The statute places the father who signs an application such as this in a position analogous to that of a guarantor. Under analogous principles such a statute should be construed in favor of the guarantor as is done when the guaranty arises under contract, that is to say, the construction should be in his favor rather than against him.when more than one construction is permissible.”
It is true that the application in the instant case, prepared by the Commissioner of Public Safety,
We are therefore of the opinion that the defendants, Mr. and Mrs. J. M. Carter, were entitled to the peremptory instruction as requested, and that since Wilba Glynn Carter, the minor defendant, was not legally served with process, the said minor could not waive any of his rights by a voluntary appearance in court. No jurisdiction can be had over an infant person except by service of process in the statutory manner. Parker v. Smith, 150 Miss. 849, 117 So. 249.
Reversed and judgment here for the appellants, Mr. and Mrs. J. M. Carter; reversed and dismissed without prejudice as to Wilha Glynn Carter.