Winn v. Haliday

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment against appellant for damages to appellee’s horse and buggy alleged to have resulted from the horse becoming frightened at appellant’s automobile. The automobile was owned by appellant, and on the occasion in question was driven by William Winn, his seventeen year old son. William had been driving automobiles for certainly three, and probably four, years; and, when the automobile here in question was purchased by his father about a year before the- alleged injury to appellee’s horse and buggy, he was placed by his father in the exclusive control thereof, and was charged with the duty of keeping it in repair and of driving it when in use by appellant or members of his family. On the occasion in question, with appellant’s knowledge and consent, several boys and girls accompanied by a chaperon, among whom were William Winn and his fifteen-year old brother, Louis, were going in the automobile from Laurel to Ellisville to attend a baseball game; the automobile being driven by William. Appellee while driving his horse and buggy [696] met this automobile at a narrow place in the road. The horse became frightened and ran away, because, according to appellee’s evidence, of the rapid and negligent manner in which the automobile was being driven, resulting in damage to both the horse and buggy for which the jury awarded appellee the sum of eighty-five dollars. According to the evidence of appellant, the automobile was being driven slowly at the time, and the fright of the horse was not caused by any negligence on the part of the chauffeur. One of the alleged errors complained of was the re^ fusal of the court below to grant appellant a peremptory instruction. The ground of this assignment of error is that as a general rule a father is not responsible for the torts of his minor son unless the latter bore to the former the relation of servant to master in the commission of the act from which the injury resulted. This we may concede to be the rule, but nevertheless appellant can receive no benefit therefrom, for, in our opinion, the relation that existed between appellant and William with reference to the running of the automobile on the occasion in question was that of master and servant; for William was then engaged in the discharge of the duty that had been imposed upon him by appellant of driving the automobile when used for the convenience or pleasure of himself or the members of his family/ See Labatt’s Master & Servant, sec. 2270, and authorities there cited. One of the instructions refused appellant in the court below is as follows: “The court charges the jury for defendant that unless they believe from the evidence that the automobile was operated by a child of defendant and that defendant had actual knowledge and information that said son was a careless and recldess. and negligent driver and given to what is generally known as joy riding when operating said machine, they will find for defendant.” [697] This instruction is not in accord with the law governing the relation of master and servant, and was therefore properly refused. Dorsey, a witness for appellee, testified that he saw this automobile near the place where appellee’s horse became frightened when it was going and returning from Ellisville, and each time it was running at a high rate of speed. That portion of his evidence which related to the return trip from Ellisville, which was some hours after appellee’s horse had been frightened, was excluded by the court at the close of the witness’ testimony. Appellant now complains that all of this witness ’ testimony should have been excluded. There is no merit in this contention because, while being examined' in chief, although Dorsey stated that he saw the automobile twice that day, he only testified to its speed when it passed him on its return trip from Ellisville, which evidence was afterwards excluded, as hereinbefore stated. The evidence of the speed of the automobile when Dorsey first saw-it, when it was going to Ellisville, was drawn out by counsel for appellant on cross-examination. Affirmed.