Herrman v. Maley

132 So. 541, 132 So. 542, 159 Miss. 538, 1931 Miss. LEXIS 71

Opinions

Anderson, J.,

delivered the opinion of the court.

Appellant brought this action in the circuit court of the first district of Hinds county against the appellees, C. E. Maley, Sr., his wife, Mrs. Elizabeth Maley, and their minor son, Richard Maley, to recover damages f'or an injury received by appellant caused by an automobile driven by Richard Maley running into another automobile under which the appellant was situated at the time trying- to extinguish a fire which had broken out under it. As a result of the collision the appellant was seriously, and the evidence tended to show permanently, injured. The grounds of recovery were the alleged negligence of Richard Maley, in driving the car, and of appellees, his parents, in permitting him to drive the car, because they knew he was a reckless and dangerous driver. The court directed a verdict on the question of liability against Richard Maley, and the jury returned a verdict against him in the sum of sis thousand five hundred dollars, from which judgement no appeal is prosecuted. As to the appellees C. E. Maley, Sr., and his wife, the court directed a verdict and judgment in their favor, and from that judgment the appellant prosecutes this appeal.

The declaration was in two counts. In the first count, the appellant sought to hold the appellees liable on the family car doctrine, and, in the second count, upon the ground of Richard Maley’s negligence, in conjunction with appellees’ negligence in permitting their- son, Richard, a minor, to drive their car knowing that he was a reckless and dangerous driver.

Appellees’ demurrer to the first count of the declaration was sustained, and trial was had on the second count and the plea of general issue thereto.

Richard Maley was about seventeen years of age at the time of the injury, ánd was living in the home of appellees, his parents. At the time of the accident he was driving a Dusenberg car, which, together with a Lincoln car, was owned by the appellees. The appellee G. E. Maley, Sr., testified that he bought both of these cars; that he gave the Dusenberg car to his wife, but that on the very day of the accident he had bought a new car for his wife and had taken over the Dusenberg car for his own use.

The evidence for the appellant was to the effect that young Maley was a reckless and dangerous automobile driver, and had that reputation in the community where the family lived, and for that reason the appellees’ liability insurance on their two cars had been canceled.

The appellees, as witnesses in their own behalf, testified that they did not know their son was a reckless au tomobile driver, but that on account of the prior accidents they had forbidden him to drive either of their cars,- and that at the time of the injury complained of they were not aware that Richard Maley, their son, was out in the Dusenberg- car. However, George Gowdy, a friend and companion of young Maley and about his age, testified that on the night of the accident causing the appellant’s injury he had arranged to spend the night in the Maley home as their guest; that the accident occurred about 9:30 at night on the Clinton and Jackson road; that he and young Maley had been out in the Dusenberg car earlier in the night returning to the Maley home in Jackson about 8:30. That on the first trip they left about 6:30 or 7:00 o’clock P. M.; that Noth the appellees were present when they went on the first trip; that young Maley told the appellees that they were going riding in the car, to which the appellees gave their assent. That when they returned from the first trip to the Maley home both the appellees were present and saw them when they returned, and that the father then said to them, “Don’t take it out (meaning the Dusenberg car) because we are going to the picture show;” that neither of the appellees made any objection to young Maley and the witness going out in the car, but merely requested that they not use it again that night because appellees wanted to use it for the purpose of going to a picture show. The testimony of the witness Gowdy tended to show further that he and young Maley had frequently gone out riding together sometimes in the appellees’ Dusenberg car and sometimes in their Lincoln car, and that the appellees knew these facts.

On cross-examination, the appellee, Mrs. Elizabeth Maley, testified in part as follows:

“Q. Had your son, Richard, been driving a car before this accident — this last accident — the one when he struck the Herrman hoy? A. He had been driving off and on, but not a great deal, because he has been away at school so much he didn’t have an opportunity to drive.

“Q. I asked you how long he had been driving a car? A. Prom the time he was sixteen he drove some, but I couldn’t give you the exact amount of time.

“Q. Did he drive the Lincoln car with your acquiescence and permission? A. Well, yes, he drove to ’some extent.”

There is no question as to Richard Maley’s negligence. The evidence showed, without conflict, that the appellant’s injury was caused by young Maley’s negligent driving. The court, therefore, was justified in directing a verdict against him. • The evidence for the appellant went further, as above stated, and tended to show that he was not only a negligent, driver of a car, but was a reckless and dangerous driver to the traveling public, and that the appellees knew he was such.

The appellant’s contention is that this evidence made a question for the jury, notwithstanding the evidence showed, without conflict, that the appellees had forbidden their son to take the car out on the particular trip during which the accident occurred. On the other hand, the appellees’ position is that, conceding that their son was a reckless and dangerous driver,, known to them to be such, nevertheless, they are not liable for appellant’s injury, because at the particular time of the accident their son was using the car contrary to their request.

When an automobile is driven by a minor child with the permission of its parents, and such child is a reckless driver, and by reason thereof injures another, and his incompetency is known to the parents, the latter are liable for the injury upon the ground of negligently permitting the child to operate the car. Parents have the right to the services of their minor children and are charged with théir discipline and control, and must suf fer the consequences of permitting them to drive an automobile when they know, or with reasonable care should have known, of their incompetency. Anderson v. Daniel, 136 Miss. 456, 101 So. 498; Huddy on Automobiles (5 Ed.), section 662, page 863. The Anderson case was an action against a father for an injury received through the negligence of his minor son in driving an automobile. It was sought to hold the father liable upon the ground that he negligently permitted his minor son to drive a car knowing’ that he was a reckless driver. No witness testified in that case that the father knew at the time of the injury that his son was operating the car, nor that he knew that his son was a reckless driver, but the evidence for the plaintiff was to the effect that the son was a member of his father’s household; that he was often seen by the neighbors driving’ his father’s car, and that the son ivas a reckless driver, and had that reputation in the neighborhood where his family resided. The court held that the eiddence was sufficient to co to the jury on the question whether or not the father knew, or should have knoAAm, that his son was unfit to drive the car.

In determining this question, what took place between the appellees and their son with reference to the particular trip during Avhich the injury occurred is not controlling, but it is the whole course of their conduct in reference to the use of the cars by their son that controls. It is true that an automobile is not a dangerous instrumentality per se, but it is a highly dangerous instrumentality in the hands of a reckless driver. • Parents who know, or who, Avith reasonable care, should know, that their minor child is such a driver, are due, so far as they reasonably can, to ^protect the traveling public against injuries on account of his incompetency. This Obligation is not satisfied by the parents forbidding the child to use their automobile on a particular trip; they should forbid its use on any occasion, and use reasonable means to enforce their injunction. If this course had heen pursued, the injury here complained of might not have occurred. If the testimony given by George Gowdy was true, the appellees’ son was in the habit of1 driving both of the family ears with their full knowledge and consent. It appears to be a reasonable inference that, except for that practice, appellees’ son would not have disobeyed their instructions and taken the car out on the trip during which the injury occurre'd.

The appellees contend that the directed verdict in their favor was justified because the second count of the declaration on which the case was tried stated no cause of action. This contention is based on the assertion that it embodied the family car doctrine, which is not recognized by this court. The second count does set out that the car which young’ Maley was driving was owned by the appellees, and was a family car, used for the pleasure of the members, of the family, but it goes further and makes the allegation that the son “was generaltv known, and to his parents, the owners of said Dtisenberg car, as a careless, negligent and reckless driver or operator of motor vehicles, and that the injuries to the plaintiff, as hereinafter set out, were due to same.” We áre of opinion that the appellees’ contention in this respect is unsound: that the second count of the declaration stated a case under the principles laid down bv this court in Anderson v. Daniel, supra. The allegation that it was a family car was unnecessary. The gist of the count is that it was a car under tbe control of appellees which thev permitted their son to drive knowing of his unfitness.for that purpose.

The appellees further contend that the directed verdict in their favor was proper because the declaration averred joint ownership of the car in the appellees, while the evidence showed, without conflict, that there was no joint ownership, but that the appellee O. E. Maley, Sr., owned the Dnsenberg car which their son was driving when the injury occurred, and that the appellee’s wife owned the Lincoln car. If it be material as to who Vas the owner of the Dusenberg car, the evidence tended to show the following facts: That both cars had been bought and paid for by the appellee C. E. Maley, Sr., for family and business purposes, and that he assigned the Dusenberg car to his wife for her use, and usually used the Lincoln car himself. He testified however that on the day of the injury to the appellant there was some sort of change had in the use of the car, on which subject he testified as follows: '

“Q. Whose car was that he took out that night? A. Tt was my car. I inherited it that day. I bought Mrs. Maley a new car and took her old one (meaning the Dusenberg car).

“0.. The same day of the accident? A.. Tes.

“0. It had been Mrs. Maley’s prior to that day? A. Tes.”

However, the ownership of the Dnsenberg car was immaterial. The declaration charged that it was owned and controlled by both the appellees, and the evidence tended to show that both cars were used by voung Maley with ihe knowledge and consent of the appellees. On this subject the witness, George Gowdy, testified in part as follows :

“Q. Tell the court whether you had had that car out that night previous to the time of this accident? A. Tes sir, we took it opt and brought it back, and Mr. Maley told us to leave it there, he was going to the picture show in it.

‘ ‘ Q. He told you to leave it there he was going to the picture show in it? A. Tes sir, and we forgot about it and took it anyhow.

“Q. What did you say to Mr. and Mrs. Maley, if anything, on the trip before that when you went out? ’A. When do you mean?

“Q. What time was it you came hack in? A. Around eig'ht-thirty I imagine.

££Q. What time had you gone out just before that in the car? A. About six-thirty or seven.

££Q. Were Mr. and Mrs. Maley present when you left then? A. Yes sir.

££Q. Did you tell them where you were going? A. Told them we were going riding at first, and when we brought it back they told us to leave it there.

“Q. The first time what did they tell you with reference to whether or not you could use the car ? A. They told us we could use it the first time.

££Q. And the second time Mr. Maley, said, ‘Don’t take it out because we are going to the picture show?’ A. Yes sir.”

As above stated, the evidence tended to show that both the appellees exercised control over their son and his use of both the family cars. And there is nothing whatever in the record to show that there was any difference between the appellees in the exercise of such control. In other words, the evidence tended to show that, so far as the use of the cars by their son was concerned, there was no disagreement between his parents, and that each of them exercised equal authority and control over their son and the use of the cars by him.

If it further be true, as the evidence tended to show, that the appellees knew, or with reasonable care could or shbuld have known, that their son was a dangerous and feckless driver of automobiles, then the ownership of the particular car he was driving is wholly immaterial. To illustrate, a son is in the habit, with the knowledge and consent of his parents, of borrowing a car from a neighbor and driving it. The parents know of the unfitness of the son to drive a car. They take no steps to prevent his borrowing and using the car. Some one is injured through the negligent driving of the car by the son. Under the law, the parents are liable for such injury on the ground of their negligence in not making reasonable efforts to prevent their son from borrowing and using the car. Parents owe such a duty to society and to the traveling public, and a failure to exercise it renders them liable as joint tort-feasors, and such liability is both joint and several.

Reversed and remanded.