McFadden v. Anderson Motor Co.

The opinion of the Court was delivered by Mr. Justice Cothran. This is the second appeal in this case, a general statement of the facts in which will be found in the former appeal, 118 S. C., 309; 108 S. E., 919. Upon the second trial the plaintiff recovered a judgment for $2,000, from which the defendant appeals. It is necessary to consider only the fifth exception, which is as follows: “Because his Honor erred in charging the jury as follows : 'Now, as to whether or not, gentlemen, after knowledge of all the facts in the case, they ratified his taking the car out and using — -not ratified running over the child, because they couldn’t do that; that was an unlawful thing to do, and they can’t ratify any unlawful act — but I say, *409 so far as his using the car was concerned, if after full knowledge of all those facts, they ratified it by acts of theirs, keeping him in their employ or otherwise dealing with him so as to ratify what he had done, then their authority would go back to the time when he first took the car out of the shop or the place, and then it would be the same as if they originally gave him permission, or if he was on their' business. That is my view of the law. It may be wrong; but from the authority which has been' handed me up here, I can’t see any other view of the law, and am going to charge you that. If I am wrong the Supreme Court, in case it goes against the defendant in this case, will correct me’; the error being: “(a) That such charge did not state a sound and correct proposition of law, and was prejudicial to the defendant. “(b) Because such charge in effect instructed the jury that if the driver of the car, Frank Hull, was not acting in the scope of his agency or employment at the time of the accident to plaintiff, the mere keeping of said Frank Hull in the employment of the defendant would ratify his act and make the defendant liable for plaintiff’s injuries, even although defendant had full knowledge of all the circumstances of the accident, but knew that said Frank Hull was not at that time acting in the scope of his employment. “(c) Because if Frank Hull was not acting in the scope of his employment at the time of said accident, the mere keeping of him in their employment could not ratify his act of taking out the car and make the defendant liable for plaintiff’s, injuries, for the reason that there could be no liability on the defendant at the time said accident occurred, and there would be no legal duty upon defendant to discharge the said Frank Hull, when he was acting out of his scope of employment with defendant.” The liability of the master for the torts of his servant arises only when the servant is acting about the master’s business, within the scope of his employ *410 ment; if he is upon his own business acting outside of his employment the master is not liable. The defendant, while admitting the ownership of the car and the employment of Frank Hull, who was operating the car at the time of the collision, contended that he was not at the time engaged about their business, but about his own. The Circuit Judge properly charged the jury that under such circumstances the defendant would not be liable unless it ratified the act of Hull in using the car, not in striking the child; and that the retention of Hull in its employment after knowledge of all the facts was not only evidence of ratification, but was ratification, “it would be the same as if they originally gave permission, or if he was on their own business.” A quotation from the case of Knight v. Motor Co., 108 S. C., 179, 93 S. F., 869, L. R. A., 1918B, 151, is sufficient to demonstrate the fallacy of this declaration: “Therefore, even if the retention of Boyd tended to prove that the motor company approved his conduct, yet the simple approval of the unlawful conduct of another about the other’s own business, after it shall have happened, will not render the approver liable for the unlawful conduct of the other.” The case referred to was one of very similar character, the use of a car by an employee for his own pleasure and on his own business. The judgment of this Court is that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial. Mr. Justice Marion concurs. Mr. Justice Fraser: I concur in the result on the ground that the retention of the driver was only evidence from which ratification might be inferred, and not ratification as matter of law.