Dempsey v. Frazier, 80 So. 341

Dempsey v. Frazier

80 So. 341 | Miss. | 1918

Sykes, J.,

delivered the opinion of the court.

Appellee, J. D. Frazier, filed suit in the circuit court against D. D. Dempsey, Eugene Dempsey, and Tom Dempsey, for daniages sustained to a mare owned by appellee, and recovered a judgment against D. D. Dempsey, from which judgment this appeal is prosecuted. D. D. Dempsey is the father of Eugene and Tom Dempsey. The declaration alleged that the three Dempseys were the joint owners of an automobile, which was-negligently being operated by Tom Dempsey at the time of the alleged injury to the mare. The testimony shows that several years previous to the filing of this suit D. D. Dempsey purchased and gaye to his minor son, Tom, then about seventeen or eighteen years old, a Ford automobile, and that at the time of the injury Tom Dempsey was operating this car for hire; that his father had nothing whatever to do with the operation of the car or with the emoluments made therefrom. Eugene had nothing whatever to do with the car, and neither D. D. Dempsey nor Eugene Dempsey knew where Tom Dempsey and the car were at the time of the alleged injury. The material facts giving rise to this cause of action are as follows: Tom Dempsey carried a passenger to some point in Winston county and was returning to his home at Louisville, Miss. The appellee, J. D. Frazier, had been *5riding a mare and had left h-er standing on one side of the public road opposite his gate. Appellee was standing near his gate talking to a friend. The automobile of Tom Dempsey came along, and the mare became frightened at it and started running down the public road about twenty-five yards in front of the automobile, The appellee attempted by -raising his hand, to stop Tom Dempsey in his car, hut Dempsey failed to stop. The testimony for the appellee was in effect that the mare ran in front of the automobile in the public road for eight or nine miles. Sometimes she would he twenty-five yards ahead of the car, and the distance varied between this and seventy-five yards. The automobile traveled during this time at a rather rapid rate of speed. After running the above distance in front of the car, the mare in some way at last turned out of the public road and let the automobile go by She sustained injuries from this run which rendered her practically worthless. At the conclusion of the testimony, the court gave a peremptory instruction in favor of Eugene and Tom Dempsey. The jury returned a verdict against the father, D. D. Dempsey.

There was no testimony introduced to show that Tom Dempsey, the minor son of appellant, at the time the father gave him his automobile, was not a competent and careful person to handle a. car. The testimony in the case shows that the father had practically emancipated his minor son', Tom, so far as claiming the right to his services. Therefore there was no testimony whatever showing that the relationship of master and servant existed between the appellant and his son Tom at the time of the injury. It is very doubtful whether or not there was any testimony of negligence on the part of Tom Dempsey shown, but for this decision we will assume that, there was. The general rule of the common law is that the parent of a minor child cannot be held liable for the tortious acts of the child on the mere ground of the parental relationship, but that the parent is respon*6sible only on the same ground that he is for the torts of other persons. Labatt’s Master and Servant, vol. 6 (2. Ed.) section 2267. There are some exceptions to this general rule not necessary to be noticed here by us. These exceptions are stated in section 2269 of Labatt, same volume as above. If the relationship of master and servant existed at the time of the tortious act of the child and the act was done in the course of this employment, then the parent would be held liable because of the doctrine of respondeat superior, Labatt, section 2270; 29 Cyc. p. 1665; 20 R. C. L. 627: In the case of Winn v. Haliday, 109 Miss. 691, 69 So. 685, this court' decided that the relation of master and servant had to exist before the father was responsible for the negligence of his minor son. The question is also discussed in the case of Woods v. Clements, 113 Miss. 720, 74 So. 422, L. R. A. 1917E, 357; Id., 114 Miss. 301, 75 So. 119, L. R. A. 1917E, 357. In the latter case, the child was an adult.

The court erred in refusing the peremptory instruction asked by appellant.

Eeversed, and judgment here for appellant.

Reversed.