Opinion
No. 31147.
April 2, 1934.
1. AUTOMOBILES.
Master furnishing automobile to servant who, while performing master's business, invited passenger to ride, held liable to passenger, whether invitee or trespasser, where passenger was injured when servant lost control.
2. AUTOMOBILES.
Though passenger invited by servant to ride in master's automobile may be trespasser, master acting through servant must refrain from reckless conduct evincing wanton disregard of passenger's safety.
3. NEGLIGENCE.
Ordinarily, doctrine of assumed risk pertains only to contractual relations.
4. NEGLIGENCE.
In view of statute whereby contributory negligence merely dimishes damages, automobile owner held not entitled to more than instruction directing jury to consider passenger's contributory negligence (Code 1930, section 511).
5. APPEAL AND ERROR.
In absence of motion for new trial, appellate court cannot interfere because of allegedly excessive verdict.
APPEAL from Circuit Court of Montgomery County.
Knox Horton, of Winona, and Armstrong, McCadden Allen, of Memphis, Tennessee, for appellant.
This case is distinguishable from any case in which the agent was employed for the sole purpose of operating an automobile. We take the position in this case that the relationship of agency between Brister and Watson on this particular trip, was the same as though Brister were employed for this one particular trip, and that his authority extended only to go to Vaiden, collect the said money, and return, and that anything which he did beyond this particular authority was in an individual capacity and not as agent or servant.
Western Union Telegraph Co. v. Stacy, 139 So. 604; McLaurin v. McLaurin Furniture Co., 146 So. 877.
The law requires the guest to protect his own safety and the law does not allow him to carelessly take a chance when he is a gratuitous passenger and then hold the operator of the car liable for injuries which were sustained through negligence to which he materially contributed by not regarding his own safety.
5 and 6 Huddy's Automobile Law (9 Ed.), page 263, section 144 and page 267, section 145.
The verdict rendered in the case at bar by the jury was excessive under the facts of the case as related by all of the witnesses for the plaintiff and the instructions granted by the court below.
J.W. Conger and V.D. Rowe, both of Winona, for appellee.
It was the duty of appellant not to wilfully or wantonly injure appellee through his agent or otherwise. It may be that, as to appellant, the appellee was a trespasser. But in a long line of decisions of this honorable court and all the courts, a trespasser is owed a duty by the principal's agent, and that duty is that as a trespasser, he ought not to be wilfully or wantonly injured by the agent, while the agent is about his principal's business.
Illinois Central Railroad Co. v. Messina, 111 Miss. 884, 72 So. 779.
Brister, appellant's agent, at the time appellee was injured, was acting in and about his master's business, although he was returning from Vaiden to Winona from a special trip on a special matter of business for appellant.
The question of whether or not the excessive rate of speed was maintained for the accommodation of appellee was submitted to the jury and solved against appellant.
The verdict of the jury was not excessive, in view of the character of injuries to appellee as fully detailed by appellee in his testimony, and as fully explained in the testimony of appellee's physician.
Alabama V. Ry. Co. v. Dennis, 91 So. 4, 128 Miss. 298; Railroad Co. v. Nelson, 82 Miss. 653, 35 So. 158.
It is generally held that the rule rests upon the theory that a trespasser in imminent peril, from which he cannot extricate himself, may not be wilfully and ruthlessly injured, and that an employer is liable for the failure of his employee to exercise due care.
Trico Coffee Co. et al. v. Clemens, 151 So. 175; Rogers v. Lewis, 144 So. 373; Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A.L.R. 131; Kalmich v. White, 95 Conn. 568, 111 A. 845.
Appellant furnished his servant with an automobile, and directed him to drive to a neighboring town, collect some money there owing to appellant, and immediately to return. After departing and while on the way, the servant invited appellee to ride in the automobile, which invitation was accepted. Not only in going but also in returning, the servant drove the automobile on a gravel road at a speed of approximately sixty miles an hour, over the protests of the passenger, and when, within a short distance of the end of the trip, the servant attempted to pass some wagons, still maintaining the reckless and unlawful rate of speed, control of the car was lost, and the automobile left the road, catapulted over a fence, and into an adjoining field finally coming to a stop, bottom up and afire, as a proximate result of which appellee, the passenger, was severely injured.
The main contention of appellant, the master, is that the passenger was the guest of the servant and not of the master, the servant being without authority to invite a passenger, and McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877, is cited. It is immaterial in the case here before us whether the passenger was an invitee or a trespasser because the servant was then and there engaged in and about the master's business, and the master having placed the servant in charge of that business, it became the master's duty and responsibility, acting through and by his servant, to refrain from conduct so reckless as to evince a wanton disregard of the safety of the trespasser, a duty and responsibility which rests upon and in favor of all mankind. Rogers v. Lewis (Miss.), 144 So. 373; Trico Coffee Co. v. Clemens (Miss.), 151 So. 175. The court instructed the jury that unless the proximate cause of the injury was the willful and wanton negligence of the servant the verdict should be for the master. The jury, upon ample evidence to sustain the verdict, found that the proximate cause was the willful and wanton negligence of the servant then and there engaged in and about the master's business.
Appellant contends, also, that the passenger by his acts and conduct procured the servant to drive at the reckless and dangerous rate of speed, in that upon the departure on the trip the passenger had stated that he would not go except upon condition that he be speedily returned, and that although after the trip was under way the passenger protested against the dangerous speed and continued to protest he did not quit the car, and that therefore the passenger assumed the risk. Although limited exceptions are admitted, the doctrine of assumption of risk ordinarily appertains only to contractual relations; but it is unnecessary to enter upon any discussion of that subject, because it seems clear that what appellant is presenting under this contention belongs to the general classification of contributory negligence and it is familiar to all that our statute, section 511, Code 1930, has enacted that contributory negligence in personal injury cases is no bar but is available only by way of diminution of damages. The jury was instructed at the request of defendants to take the contributory negligence of the plaintiff into consideration in arriving at their verdict. This was all to which appellant was entitled on this feature of the case.
Appellant complains that the verdict is excessive. We think the verdict moderate under the facts as shown by ample testimony on that issue; but if otherwise, we would have no power to interfere because there was no motion for a new trial. Coccora v. Light Traction Co., 126 Miss. 713, 726, 89 So. 257; St. Louis S.F. Ry. Co. v. Bridges, 156 Miss. 206, 218, 125 So. 423.
Two other asserted errors are argued but we do not think they amount to error as applied to this record.
Affirmed.