81 S.E. 487 | S.C. | 1914
Lead Opinion
April 21, 1914.
After reciting the foregoing statement of facts, the opinion of the Court was delivered by There are but two questions in this case:
1st. Is A.S. Littlefield responsible under any view of the case? 2d. Was there abuse of discretion in not granting a new trial on account of misconduct on the part of a juror?
The appellant testifies as follows:
"Q. You sent it down here for the comfort of your family? A. For anyone that wanted to use it. Q. Any member of your family that wanted to use it could do it? A. Yes. sir."
The sole purpose of having the car was for the pleasure of the family. The family for whose use the car was sent consisted of Mrs. Littlefield, and three sons, two of whom were college students and only in Aiken for a short time. The principal use, therefore, was for the wife and this son, Randolph, who drove the car on the day of the accident. The wife was not in good health and used the car but little and then Randolph drove. The family use, therefore, consisted mainly in Randolph's use.
The authorities cited by appellant concede that if Randolph was driving his mother, the appellant would be responsible, and the ground of responsibility would have been that in driving his mother, Randolph would have been in the performance of the appellant's business. If Randolph had employed a hired driver to take Randolph and his friends out for a pleasure ride, the responsibility of appellant would have been equally clear. The machine would have been used for its sole purpose, i. e., the family pleasure. The *177 fact that the son drove himself did not in any way change the business for which the machine was used. The illustration used by Judge Gage was forceful, clear and accurate. The general proposition that a servant in the transaction of his master's business shall have no purpose of his own is nowhere maintained. When a master sends his servant to town on the master's business, we know of no Court that has held that if the servant is induced to go mainly because he wants to make purchases for himself, the private purpose of the servant will relieve the master from liability for the negligence of his servant in the conduct of the master's business. The parent is not liable for the negligence of the child by reason of the relation of parent and child, yet, if the child is the agent of the father, then the existence of the relation, parent and child, does not destroy the liability of the principal for the acts of the agent. So here the nonliability of the father for the acts of the son does not destroy the liability of the master for the acts of his servant done in the course of his employment.
Upon the second question:
The case cited by appellant, McGill v. Railway,
"In the first place, the reasons for refusing to interfere with the discretion of a Circuit Judge in matters involving the purity of the jury box and the integrity of verdicts are peculiarly strong. He is in the atmosphere of the trial, and has opportunity to estimate the character and intelligence of the jurors, as well as of the person charged with improper conversation or corrupt dealings with them. He has opportunity also to consider the verdict in the light of the evidence and the sources from which the evidence comes, and determine whether the verdict has so little support as to indicate corrupt or improper influence. These and perhaps other things afford the trial Judge such superior means of coming to a just conclusion, that before *178 disturbing his order on such a subject, an appellate Court should require very clear evidence of abuse of discretion."
In this case the juror did not know of the interest of Mr. Weeks until too late. The showing is that he did not discuss the case. The showing also is that the Circuit Judge approved the verdict.
The judgment appealed from is affirmed.
Dissenting Opinion
I dissent from the conclusion that appellant is liable, and concur in the disposition of the other grounds of appeal.
MR. JUSTICE GAGE did not sit in this case.