Black v. Goldweber

• Decision Date: 07 February 1927
• Docket Number: 169
• Citation: 291 S.W. 76,172 Ark. 862
• Parties: BLACK v. GOLDWEBER
• Court: Arkansas Supreme Court

291 S.W. 76

172 Ark. 862

BLACK v. GOLDWEBER

No. 169

Supreme Court of Arkansas

February 7, 1927

Appeal from Jefferson Circuit Court; T. G. Parham, Judge; reversed.

Judgment reversed and cause remanded.

Sam M. Levine, for appellant.

Wooldridge & Wooldridge, for appellee.

HUMPHREYS J. Mr. Justices HART and KIRBY concurring. Chief Justice MCCULLOCH dissenting.

OPINION

HUMPHREYS, J.

Appellant instituted this suit in the circuit court of Jefferson County against appellee to recover damages in the sum of $ 5,000 for injuries received while riding in appellee's automobile from Pine Bluff to Little Rock through the alleged negligence of appellee in driving same in a reckless and dangerous manner, and at a reckless and dangerous rate of speed, and in disregard of the traffic laws and the regulations of the highway. Appellee filed an answer, denying the material allegations of the complaint.

The cause was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a peremptory instruction to the jury to return a verdict in favor of appellee and a consequent judgment dismissing her complaint, from which is this appeal.

Appellant was and had been employed by appellee for a number of years in his store at Pine Bluff. She is a widow, and her children live in Little Rock. Appellee and his little girl were going to Little Rock in an automobile, on or about April 12, 1925. Appellant expressed a desire to the little girl to accompany them to Little Rock, so that she might see her children. The little girl spoke to her father on behalf of appellant, and obtained his permission for her to accompany them. The testimony introduced by appellant tended to show that the automobile in which they made the trip was turned over on account of fast driving by appellee, which resulted in injury to appellant.

The trial court instructed a verdict for appellee upon the theory that the only duty he owed appellant, while riding in his automobile as a self-invited guest, was to refrain from injuring her willfully or wantonly. The testimony failed to reveal any evidences of a willful or wanton attempt on the part of appellee to injure appellant.

The only question presented for determination on this appeal is whether the trial court was correct in assuming, as a matter of law, that the only duty the owner and driver of an automobile owes a self-invited guest riding in his car is not to injure him willfully or wantonly. The doctrine announced by the trial court finds support in the case of Lutvin v. Dopkus, decided by the Supreme Court of New Jersey in 1920, reported in 108 A. 862, and two or three other courts which have adopted the rule announced by the New Jersey court. The general rule or duty to bare licensees is applied by these courts to owners and drivers of automobiles and other vehicles. The distinction between the duty to invitees and bare licensees has been preserved by these courts and applied in vehicle cases.

The trend of modern authority is to disregard this distinction and apply the rule of duty imposed on owners and drivers of vehicles to invitees, to self-invitees or licensees also. The prevailing rule, approved by recent cases, requires drivers of automobiles to exercise ordinary care in the operation thereof to transport their passengers safely, whether guests by sufferance, self-invited guests, or invited guests. In the recent case of Munson v. Rupker (Ind.) 148 N.E. 169, the court disapproved the doctrine announced in Lutvin v. Dopkus, supra, and adopted the prevailing rule, for the following reasons:

"It seems to us that the only sensible and humane rule is that an owner and driver of an automobile owes a guest at sufferance the duty of using reasonable care so as not to injure him. The rule as to trespassers and licensees upon real estate with all its niceties and distinctions, is not to be applied to one riding in an automobile at the invitation of, or with the knowledge and tacit consent of, the owner and operator of the automobile. A trespasser and...