Opinion
No. 34013.
February 12, 1940.
AUTOMOBILES.
The fact that owner of automobile had been advised that his alleged employee did not drink intoxicating liquor while at work but occasionally did while not at work did not charge owner with constructive knowledge that employee was liable to be drunk while driving an automobile so as to render owner liable for damage resulting from alleged employee's negligence in driving the automobile.
APPEAL from the circuit court of Pontotoc county; HON. CLAUDE F. CLAYTON, Judge.
A.M. Mitchell, of Pontotoc, for appellant.
We call the attention of the court to assignment of error No. 7 wherein the court erred in granting instruction No. 3 for the plaintiff. In this instruction the court informs the jury that a drunken driver of an automobile is an incompetent and that one furnishing an automobile to another whom he knows, or ought in the exercise of reasonable care to know, is liable to be drunk while driving is liable for an injury which results as a proximate consequence thereof. And that if the jury believes that Gooch knew or in the exercise of reasonable care ought to have known that Brasshear was liable to be drunk while driving said automobile and that he was drunk while driving same when it struck the team and wagon of the plaintiff as the proximate result of said drunkenness, that then it was the sworn duty of the jury to find for the plaintiff despite the fact that Brasshear was not acting as the servant of Gooch at the time The error in this instruction is that there was no kind or character of testimony introduced on the hearing of this cause that would tend to show or indicate that Gooch knew that Brassfield was liable to be drunk while driving a car or that in the exercise of reasonable care he should have known it.
In the case of Hudson v. L. N.R.R. Co., 30 F.2d 391, it is held that punitive damages are not authorized except in cases of willful conduct or reckless indifference to consequence.
N.O., J. G.N.R. Co. v. Statham, 42 Miss. 607; I.C.R.R. Co. v. Dobbs, 53 So. 409; Y. M.V.R.R. Co. v. Hardie, 55 So. 967; Bounds v. Watts, 131 So. 804; McDonald v. Moore, 131 So. 824; Miss. Power Co. v. Byrd, 131 So. 193.
Hugh N. Clayton, of New Albany, for appellee.
There is no conflict in the evidence but that Brasshear was drunk at the time and the appellant admits it. This accident happened when automobile traffic was governed by Chapter 138 of the 1930 Code and Section 5579 forbade the operation of a motor vehicle by any person in the state of intoxication.
Levy v. McMullen, 169 Miss. 659, 152 So. 899.
The appellant should not be allowed to claim exemption from liability because he says he did not know Brasshear was an intoxicated driver. He had every opportunity and sufficient time to learn this fact definitely. The appellee had no time to find anything out with reference to Brasshear and all he could do was to shudder in his wagon as the onrushing car made its onslaught upon him. No rule is more definitely recognized in legal jurisprudence than that the person who employs and confides should be the loser rather than a stranger as announced in the case of New Orleans, Jackson Great Northern Railroad Co. v. Allbritton, 38 Miss. 242.
Our court has held that the master is liable for punitive damages for gross, wanton and reckless negligence, set forth in the recent case of Teche Lines, Inc., v. Pope, 175 Miss. 393, 166 So. 539, in these words: "It is the firmly established law in this state that punitive damages are recoverable not only for wilful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, the equivalent of willful wrong. Godfrey v. Meridian Light Ry. Co., 101 Miss. 565, 568, 58 So. 534. There is no precise definition of gross negligence, but one of the approximate definitions may be thus expressed: Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to conequences without the exertion of any substantial effort to avoid them."
I submit that the circuit judge was correct in granting instructions No. 5 and 6 for the appellee as to punitive damages.
Argued orally by Hugh N. Clayton, for appellee.
The appellee was driving a wagon drawn by a horse and a mule owned by him over a public highway when the team was struck by an automobile driven by E.N. Brasshear. The horse was killed; the appellee and the mule were injured; and the wagon was damaged. Brasshear was drunk and there is no question as to his negligence in driving the automobile. Gooch was sued for the injury on two grounds: (1) that Brasshear was driving the automobile for him as his servant; and, (2) that he furnished the automobile to him "when he knew or ought to have known that E.N. Brasshear was liable to be drunk while driving it." The evidence was in conflict as to whether Brasshear was acting for the appellant in driving the car. No error appears in the instructions relative thereto.
When Brasshear applied a short time before the accident to the appellant for work in his garage, or, as the appellant says, to lease the garage, he referred the appellant to several persons as to his habits, who advised the appellant that Brasshear did not drink intoxicating liquor while at work, but occasionally did while not at work, but nothing in this information indicated that he was accustomed at any time to become intoxicated. The appellee requested and was granted the following instruction: "If the Jury believe from a preponderance of the evidence that W.S. Gooch furnished or permitted the use of the automobile driven by E.N. Brasshear; that said Gooch knew or in the exercise of reasonable care ought to have known that Brasshear was liable to be drunk while driving said automobile and that the said Brasshear was drunk while driving the said automobile when it struck the team and wagon of the plaintiff's and that the personal injury to the plaintiff and the damage to his personal property, if any, as shown by the evidence, was the proximate result thereof, then, it is the sworn duty of the Jury to find for the Plaintiff, despite the fact that you may believe from the evidence that said Brasshear was not acting as the servant of said Gooch at the time."
The appellant did not know that Brasshear was liable to be drunk while driving the automobile and the fact that he knew he occasionally drank intoxicating liquor was insufficient to charge him with constructive knowledge of the fact that he was liable to be drunk while driving an automobile.
Reversed and remanded.