Rush v. McDonnell , 214 Ala. 47 ( 1925 )

The principles of law declaratory of a carrier's duty to one who is on its train as a mere licensee (as in McCauley v. T. C. I. Co., 93 Ala. 356, 9 So. 611; Lawrence v. Kaul Lbr. Co.,171 Ala. 310, 55 So. 311; and Crider v. Yolande C. C. Co.,206 Ala. 71, 89 So. 285), and in analogous cases, are not applicable to a person riding in an automobile or other vehicle as the invited guest of the owner, or of any one who is driving it on his own account. In the cases above referred to, the injured plaintiff was not an invited guest of the defendant, and the defendant's liability was predicated wholly upon the negligence of an agent who, without his principal's consent, permitted the plaintiff to ride as an accommodation to him. The duty of due care not to injure an invited guest in the latter case is of universal recognition, so far as we are advised. Perkins v. Galloway, supra; McGeever v. O'Byrne, supra.

We are not confusing the liability of the driver of the car, or of his principal, for the negligent operation of the car, with the liability of the owner or custodian of the car for intrusting its operation to an incompetent driver. The two phases of liability are separate and distinct, and in the latter case the liability is not based upon the doctrine of respondeat superior. Yet the injurious conduct of the bailee, resulting from his incompetency as a driver, is a necessary factor to the liability of the owner or custodian, without which the wrongful bailment could not be said to be the proximate cause of the injury. Hence any consideration of the owner's liability must involve also a consideration of the conduct of the bailee and of his legal culpability. Parker v. Wilson, 179 Ala. 361, 370,60 So. 150, 43 L.R.A. (N.S.) 87.

The suggestion that the Act of 1911, supra, cannot be applied to this case because it was not declared upon by the plaintiff in his complaint, is of course unsound. General domestic statutes, state and federal, are judicially known by the court, and are read into every pleading. Crawford v. Planters' etc., Bank, 6 Ala. 289; K. C., etc., R. Co. v. Flippo, 138 Ala. 487,35 So. 457. There are no decisions to the contrary, though the rule is different when municipal ordinances are relied upon.

The chief contention made by counsel for appellee is that the provision in question (section 22 of the Act of 1911 [Acts 1911, p. 634, 643]) was not enacted for the benefit of persons injured while riding in the car with the minor. This was the crucial question in the case, and it was duly considered on the original hearing. Several new arguments, based upon the title and contexts of the act, are now advanced in support of that contention, which are deserving of notice and response.

1. The act, according to its caption, provides generally for "registration, licensing, identification and regulation of motor vehicles operated upon the public highways of this state"; and our attention is called to a succeeding clause declaratory of the purpose of "fixing liability for persons riding therein." The argument is that this purpose was expressed in section 34 of the act, which provided that "the contributory negligence of the person operating or driving any motor vehicle in this state shall be imputed to every occupant of said motor vehicle at the time of such negligence in actions brought by such occupant or his personal representatives for the recovery of damages for death or personal injury whether the relation of principal and agent exists between such person operating or driving such motor vehicle and such occupant or not"; and that this provision, though it has been nullified as unconstitutional (Birmingham-Tuscaloosa Ry. U. Co. v. Carpenter, 194 Ala. 141, 69 So. 626), is still useful and effective to show that it was not the legislative purpose to confer a right of action upon any person riding in an automobile for any injuries sustained by reason of a violation of any duty imposed by the act.

We do not think this provision can be accorded such a meaning. The titular provision for "fixing liability for persons riding therein" is certainly not referable to the provisions of section 34 for restricting such persons' right of recovery against others. The two things are entirely antithetical.

But, conceding for the argument that section 34 is related to the titular provision quoted, we can still find no merit in the contention. Section 34 is very clearly intended to deny any right of recovery in favor of those riding in the car in those cases where, by reason of his own contributory negligence, the driver of the car cannot recover; and the very words of the section show unmistakably that it is applicable, and can only be applicable, to an action against some third person for injurious conduct affecting the car and its occupants. The contributory negligence of the driver imports, ex vi termini, a prior or contemporaneous negligence on the part of a third person charged with liability. Section 34 then can have no influence upon the question here at issue, the liability of the owner or custodian of the car for injury proximately resulting to any person, in or out of the car, from the incompetence of the driver to whom its operation has been intrusted.

2. It is contended that, since the act makes no distinction between adults and infants who may be injured while riding in the car, then, if its terms by necessary implication exclude adults from the class to whom the owner is liable, they must be held to be inapplicable to all persons of either class; and the argument is that there is such an implied exclusion because the owner's liability is prevented if the infant driver is "accompanied by an adult person." Counsel's view of this is that this condition to nonliability is met by the presence of any adult person who may happen to be riding in the car.

This argument is specious but manifestly unsound. "To accompany," according to the New Standard Dictionary, means "to go with, or be associated with, as a companion, an attendant, or a retinue; escort or convoy; also, to go or be sent with as an incidental or concomitant." Here, "accompanied by an adult person" undoubtedly means attended by an adult person having and exercising supervision over the infant in respect to his operation of the car. Indeed, the plain purpose and policy of the act forbid any other construction of the word.

We do not, upon full consideration, find any sufficient reason for changing our conclusions as expressed on the original hearing, and the application for rehearing will therefore be overruled.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.