Opinion
No. 43767.
January 31, 1966.
1. Motor vehicles — master and servant — personal mission — no connection between salesman's operation of automobile and his employment.
Evidence in action against automobile dealers for injuries sustained in accident involving dealers' automobile, which their salesman was driving while on personal mission, was insufficient to take to jury the question of whether there was any connection between salesman's operation of automobile and his employment.
2. Master and servant — doctrine of respondeat superior — burden of proof.
Claimant under doctrine of respondeat superior has burden to show that employee was acting within scope of his employment.
3. Negligence — contributory negligence — limited recovery.
Evidence in action arising out of collision between plaintiff's bicycle and defendant's automobile supported jury's finding of plaintiff's contributory negligence, limiting plaintiff's recovery.
Headnotes as approved by Brady, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREEN, JR., J.
H.T. Carter, Stone McBryde, Columbus, for appellants.
I. The lower court erred in sustaining the motion for a directed verdict on behalf of the two defendants, J. Ralph Brown and Floyd W. Brown, co-partners, doing business as Brown Buick-Cadillac Company, a partnership, in Columbus, Mississippi. Brennan v. J.B. White Motor Co., 206 N.Y.S. 544, 210 App. Div. 533, affirmed 240 N.Y. 597, 148 N.E. 720; Walsh v. Feinstein, 251 Mass. 109, 146 N.E. 355.
II. The verdict of the jury, on the question of the damages, is inadequate and is contrary to the overwhelming weight of the evidence. Boehm v. St. Louis Public Service Co., 368 S.W.2d 361; Kincade Lofton v. Stephens (Miss.), 50 So.2d 587; Pullin v. Nabors, 240 Miss. 864, 124 So.2d 117; Woodmansee v. Garrett, 247 Miss. 148, 153 So.2d 812.
Burgin Gholson, Sams and Sams, Columbus, for appellees.
I. The Court correctly directed a verdict in favor of the defendants, J.R. and F.W. Brown, co-partners, doing business as Brown Buick-Cadillac Company.
A. To hold an employer responsible for the tort of an employee under the doctrine of respondeat superior, plaintiff must prove that the employee was acting at the time in the course of his employment. 8 Am.Jur.2d, Automobiles and Highway Traffic, Secs. 571, 615, 615, 642 pp. 122, 165, 171, 199; Anno. 53 A.L.R. 2d 681.
B. Mississippi requires a plaintiff seeking to recover under respondeat superior to prove business purposes. Burke v. Shaw, 59 Miss. 443; Canton Cotton Warehouse v. Pool, 78 Miss. 147, 28 So. 823; Dement v. Summer, 175 Miss. 290, 165 So. 791; International Shoe Co. v. Harrison, 217 Miss. 152, 63 So.2d 837; Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370; Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229; Thomas-Kincannon-Elkin Drug Co. v. Hendrix, 175 Miss. 767, 168 So. 287; Thrash v. Jackson Auto Sales, 232 Miss. 845, 100 So.2d 574; Western Union Telegraph Co. v. Stacy, 162 Miss. 286, 139 So. 604.
C. The use of dealers' automobiles by salesmen is not a basis of liability, if being used for personal purposes. Lovett Motor Co. v. Walley, supra; 8 Am.Jur.2d, Automobiles and Highway Traffic, Sec. 642 p. 200; Anno. 53 A.L.R. 2d 654.
II. The verdict of the jury, on the question of damages, is adequate under the overwhelming weight of the evidence and the applicable law.
A. The jury decides all questions of negligence and contributory negligence, and may diminish the damages of the injured party in proportion to his negligence even though not so instructed. Catchot v. City of Ocean Springs, 218 Miss. 417, 67 So.2d 444; City of Indianola v. Love, 227 Miss. 156, 85 So.2d 312; Gilliam v. Sykes, 216 Miss. 54, 61 So.2d 672; Herrington v. Hodges, 249 Miss. 131, 161 So.2d 194; Pounders v. Day, 151 Miss. 436, 118 So. 298; Whatley v. Delta Brokerage Warehouse Co., 248 Miss. 416, 159 So.2d 624; Winstead v. Hall, 251 Miss. 800, 171 So.2d 354; Secs. 1454, 1455, Code 1942.
B. A minor of about thirteen years of age is chargeable with his contributory negligence. Louisville, N.O. T.R. Co. v. Hirsch, 69 Miss. 126, 13 So. 244; Morris v. Boleware, 228 Miss. 139, 87 So.2d 246; Pounders v. Day, supra; 65 C.J.S., Negligence, Secs. 144, 145.
C. The jury is the final arbiter of the facts, and its verdict will not be disturbed by the reviewing court unless it is so inadequate as to evince bias, prejudice or passion. Gore v. Patrick, 246 Miss. 715, 150 So.2d 169; Herrington v. Hodges, supra; Matheny v. Illinois Central R. Co., 235 Miss. 173, 108 So.2d 589; Ramsey v. Price, 249 Miss. 192, 161 So.2d 778.
Appellant, a minor, plaintiff below, by father and next friend, instituted suit for injuries received when he, while riding his bicycle, was struck by a "demonstrator" automobile owned by defendants below, Floyd W. Brown and J. Ralph Brown, an automobile copartnership, and being driven by appellee, salesman of the copartnership.
The appellant, approximately thirteen years old, attempted to cross, when heavily traveled, the four-way stop intersection of 18th Avenue, North and 7th Street in Columbus, Mississippi. The appellant rode his bicycle north and in front of the appellee's car which had stopped and was then proceeding west when it struck the right rear of appellant's bicycle, knocking appellant into a ditch. The point of impact, which appellant disputed, was designated to be eighteen steps west of the northwest corner of the intersection.
The trial court granted a peremptory instruction for the defendants, Floyd W. Brown and J. Ralph Brown. The jury returned a verdict for the appellant in the sum of $7,500. Judgment for this amount was entered and appellant appeals.
There are but two issues involved in this cause, the first being whether or not the codefendants, Floyd W. Brown and J. Ralph Brown, copartners in the Buick-Cadillac automobile business in Columbus, were entitled to a peremptory instruction, and the second being whether or not the verdict of the jury is inadequate and evinces bias and prejudice on the part of the jury.
(Hn 1) With reference to the first question, the record wholly fails to disclose that there was any connection between the operation of the automobile by Thomasson and his employers. Thomasson was on a purely personal mission and was driving his maid to his home at the time he collided with the bicycle being operated by the appellant.
(Hn 2) This Court has repeatedly held that it is incumbent upon the claimant under the doctrine of respondeat superior to show that the employee was acting within the scope of his employment in order to hold the employer responsible for the negligence of the servant. This appellant wholly failed to do, and the lower court was correct in sustaining the motion of Floyd W. Brown and J. Ralph Brown for the peremptory instruction as to the copartnership which employed the appellee.
Insofar as the second contention is concerned, that the verdict of the jury is inadequate under the facts, we point out that it was for the jury to say whether or not the appellant was guilty of contributory negligence and to what degree.
(Hn 3) Under the facts in this case the jury was warranted in finding that the appellant was guilty of abundant contributory negligence. We are sympathetic with the appellant because of his injuries, but we cannot hold that the verdict of the jury is not proper under the evidence offered in this case. The right of the jury to estimate and fix the amount of contributory negligence and the amount of the verdict based thereon has been clearly determined. The questions of law involved in this case are clearly settled, as shown by the following decisions and statutes: Winstead v. Hall, 251 Miss. 800, 171 So.2d 354 (1965); Ramsey v. Price, 249 Miss. 192, 161 So.2d 778 (1964); Herrington v. Hodges, 249 Miss. 131, 161 So.2d 194 (1964); Whatley v. Delta Brokerage Warehouse Co., 248 Miss. 416, 159 So.2d 634 (1964); Gore v. Patrick, 246 Miss. 715, 150 So.2d 169 (1963); Matheny v. Illinois Cent. R.R., 235 Miss. 173, 108 So.2d 589 (1959); Thrash v. Jackson Auto Sales, Inc., 232 Miss. 845, 100 So.2d 575 (1958); Morris v. Boleware, 228 Miss. 139, 87 So.2d 246 (1956); City of Indianola v. Love, 227 Miss. 156, 85 So.2d 812 (1956); Catchot v. City of Ocean Springs, 218 Miss. 417, 67 So.2d 444 (1953); Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370 (1953); Gilliam v. Sykes, 216 Miss. 54, 61 So.2d 672 (1952); Pounders v. Day, 151 Miss. 436, 118 So. 298, 299, 300 (1928); Louisville, N.O. T. Ry. v. Hirsch, 69 Miss. 126, 13 So. 244 (1891); Miss. Code Ann. §§ 1454, 1455 (1956).
For the foregoing reasons, the judgment of the lower court is affirmed.
Affirmed.
Gillespie, P.J., and Jones, Inzer and Smith, JJ., concur.