#### KATHLEEN JONES, Administratrix of LETTIE JONES, v. S. J. STANCIL, W. L. DUPREE, L. J. PENNY and MRS. L. J. PENNY.

(Filed 26 March, 1930.)

Master and Servant D lb — Where lessee was to use lessor’s truck only during- day, lessor is not liable for injury caused by defective lights.

Where under the terms of a lease the lessee was to use the lessor’s automobile truck only during the day, the lessor is not liable in damages to a third person for an injury caused by defective lights thereon while the lessee was driving the truck at night in violation of the terms of the agreement.

Appeal by plaintiff from Lyón, Emergency Judge, January Special Term, 1930. From Waice.

Affirmed.

Thos. W. Ruffin for plaintiff.

Robert N. Simms for L. J. Penny and Mrs. L. J. Penny.

Peb Oubiam.

Tbe defendant Stancil rented a farm owned by Mrs. L. J. Penny for tbe year 1929. Tbe rental contract was made by Stancil and L. J. Penny, wbo represented bis wife in tbe transaction. Penny was to furnish tbe land, tbe stock, and one-balf tbe fertilizer. Stancil was to furnish tbe labor, and tbe crop was to be divided between them. Stancil hired a Ford truck from Penny in which Stancil hauled cotton pickers to and from tbe farm. On 19 October, 1928, a collision occurred between tbe truck, which was driven by Stancil, and a Ford coupe, which was driven by "W". L. Dupree. Tbe plaintiff’s intestate was injured by tbe collision and within a short time she died from tbe effects of her injury. Tbe plaintiff brought suit to recover damages for her wrongful death. At tbe close of her evidence her counsel admitted that she bad no cause of action against Dupree; tbe judge dismissed tbe action against L. J. Penny and bis wife, and the plaintiff took a voluntary nonsuit as to Stancil.

Tbe plaintiff contends that there was error in ordering a nonsuit as to L. J. Penny. Tbe contention is based upon tbe theory that Penny owned tbe truck; that be knew it bad no lights; that it could not be safely operated at night; and that tbe owner is liable for injuries caused by tbe negligence of tbe lessee. It is needless to consider this proposition of law for tbe reason that tbe plaintiff’s evidence shows that according to tbe agreement between Penny and Stancil tbe truck was to be operated only in daytime when there would be no occasion for using tbe lights. If Stancil was negligent in operating tbe truck in breach of bis agreement bis negligence cannot be imputed, to Penny, wbo contracted to prevent tbe negligence which resulted in tbe intestate’s injury.

Judgment affirmed.