Woods v. Clements

74 So. 422 | Miss. | 1917

SteveNS, J.,

delivered the opinion of the court.

Before the plaintiff can recover in this suit, the proof must sufficiently show the relationship of master and servant between the defendant, Mr. Woods, and his unmarried adult daughter. It must appear that Miss Majorie Woods, the driver, was the defendant’s chauffeur. If the relationship of master and servant is sufficiently established, then the doctrine of respondeat superior applies, and the negligence of Miss Majorie at the time of the collision in question would be the negligence of the master. To constitute this relation there need not be either an express contract or compensation. The relationship may arise from an implied agreement. Most of the adjudicated cases brought to our attention grew out of the alleged negligence of minor children. It is elementary that the father has a right to the services of his minor son; a right, to a large extent, to control his actions or movements. It may be conceded that, if the father supplies his family with an automobile to be used for the pleasure and entertainment of the entire family, he may he held liable for the negligent operation of the car by one of the minor children selected to run or operate the machine. If the father should turn the car over to a child inexperienced in driving or incompetent to handle so powerful a machine, he might be liable upon another theory. Each case must turn.upon its own peculiar facts. The authorities are in accord that an automobile is not per se a dangerous, agency. McNeal v. McKain, 33 Okla. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775, and authorities cited.

Responsibility in this case, then, turns upon the negligence of the driver and the further and important inquiry whether the driver could be regarded as a family chauffeur or servant at the particular time of the accident. It appears that she was on no mission for her father, and the proof fails to show that the father even knew his daughter intended to use the car on the pleasure trip, here marred by an unfortunate accident. The proof, in our judgment, fails to establish the relationship of master and servant. This is not a case where the father is presumed to have use of bis child’s services, and it would be going far to say that the unmarried adult daughter of the family could on the occasion in question be classed as a servant. The car was not purchased or maintained primarily for the pleasure of the family. The father was not even the sole owner of the car. Under the facts, we think appellant was entitled to a peremptory instruction. The only previous announcement of our court anywise in point is to be found in Winn v. Halliday, 109 Miss. 691, 69 So. 685, the holding in which fully accords with the views now expressed.

Reversed and remanded.