Forbes v. Reinman & Wolfort

• Decision Date: 13 April 1914
• Docket Number: 261
• Citation: 166 S.W. 563,112 Ark. 417
• Parties: FORBES v. REINMAN & WOLFORT
• Court: Arkansas Supreme Court

166 S.W. 563

112 Ark. 417

FORBES v. REINMAN & WOLFORT

No. 261

Supreme Court of Arkansas

April 13, 1914

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

Bradshaw Rhoton & Helm, for appellant.

Where the owner of an automobile furnished it with a chauffeur to another for hire, the owner is liable in damages for the negligence of the chauffeur where the passenger has no control over the chauffeur other than to tell him where to go. 44 L.R.A. (N. S.) 113; 140 N.W. 184; 87 Ala. 610; 7 So 666; 72 Ark. 579; 105 Ark. 477; 131 Cal. 129, 52 L.R.A. 205; 46 Ga. 420; 86 Ga. 274; 105 Ill. 364; 168 Ill. 514; 8 Ind. 157; 24 Ind.App. 583; 42 Ia. 246; 38 L.R.A. (N. S.) 973; 75 Ia. 314; 109 Ia. 455; 145 S.W. 155; 147 Ky. 506; 77 Me. 540; 85 A. 48; 109 Me. 521; 98 Md. 43; 140 N.W. 184; 62 Miss. 568; 189 Mass. 287; 181 Mass. 416; 196 Id. 524; 185 Id. 126; 124 Id. 24; 204 Id. 110; 166 Id. 268; 168 Id. 12; 160 Id. 374; 64 N.H. 361; 66 N.Y. 11; 203 Id. 198; 67 N.Y.S. 76; 62 Id. 1086; 36 Ohio St. 86; 11 A. 642; 149 Wis. 528; 74 A. 387; 47 N.J.L. 161-167; 116 U.S. 366-380; 12 Prob. Div. 58; Wood on Master & Servant, §§ 287-317.

Baldy Vinson and Mehaffy, Reid & Mehaffy, for appellees.

The relation of appellees to appellant's intestate was not that of a common carrier of passengers, bound to exercise extraordinary diligence for the safety of the passengers, but rather that of bailor and bailee, bound only to the exercise of due care and diligence in the performance of the duty imposed upon him by that character of contract, i. e., to such care and skill as prudent and cautious men experienced in the business are accustomed to use under similar circumstances. 73 A. 324; 79 S.E. 77; 49 N.W. 838; 25 Cyc. 1513; 130 S.W. 136-140; Hutchinson on Carriers, § 96; 77 Conn. 688; 44 Ill.App. 97; 77 Conn. 688; 69 L.R.A. 561; 86 S.W. 318.

OPINION

HART, J.

Appellants brought separate suits against appellees to recover damages on account of the alleged negligence of appellees, and the cases were consolidated for the purpose of trial. The facts, so far as are necessary for a determination of the issue raised by the appeal, are as follows:

Appellees had been engaged in the livery business in the city of Little Rock for several years, and, in connection therewith rented automobiles to such persons as they chose. In May, 1912, George Forbes telephoned to appellees for an automobile and driver to be used by him and some guests in driving about the city of Little Rock. Forbes had hired automobiles from appellees before this time. Appellees sent an automobile and driver to the place designated by Forbes. Forbes and Mr. and Mrs. E. L. Smith as his guests, entered the automobile and gave directions to the driver as to the places where they wished to go. The driver had control of the machine, and the management of it, and drove it to the places directed by Forbes. While going along High street, in the city of Little Rock, the automobile ran into an express wagon, and Forbes was killed and Mrs. Smith severely injured.

The testimony on the part of appellants tends to show that the collision occurred by reason of the negligence of the driver of the automobile, while the testimony of appellees tends to show that it was caused by the negligence of the driver of the express wagon.

Appellees testified that the chauffeur in charge of their car was an experienced driver, and had been in their employment as long as they had been in the business of hiring out automobiles; that he had never had an accident before, and was both careful and skillful; that the car in question cost $ 3,500, and was in perfect condition.

The circuit court directed a verdict in favor of appellees on the ground that the only duty appellees owed to the occupants of the car was that of exercising ordinary care in furnishing a safe automobile and a careful and reliable chauffeur. To reverse the judgment rendered, appellants have prosecuted this appeal.

Mr Hutchinson, in his work on Carriers, third edition, volume 1, section 35, says that private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally, or upon the particular occasion, undertake for compensation to carry the goods of others upon such terms as may be agreed upon. At section 37, the same author says that the bailment to the private carriers for hire being for the mutual benefit of the parties, the law exacts of him a higher degree of diligence than of the carrier without hire; that the measure of his duty is what is known as ordinary care or diligence, and for the lack of this he will be held liable. Again, at section 96 of the same volume, he said: "Ordinarily livery stable keepers engaged in the business of letting for hire teams and vehicles, either with or without drivers, are not carriers of passengers within the legal meaning of the term. They do not hold themselves out as undertaking, for hire, to carry indiscriminately any person who may apply." So it may be said at the outset that the relation between the hirer of the vehicle and the owner is that of bailee and bailor, and the liability of the owner is governed by the rules applicable to such a contract of bailment. Appellees hired to Forbes an automobile and driver to be used by him and his guests in driving around the city of Little Rock; and thus they became a private carrier for hire, and as such were required to use ordinary care and diligence in the performance of the duty imposed upon them by the contract. Counsel for appellees contend that the duty imposed upon the latter was to exercise ordinary care and skill in the selection of the motor vehicle, and also to exercise ordinary care and prudence in the selection of a careful and skilled chauffeur. They cite, in support of their contention, the following cases: McGregor v. Gill, 114 Tenn. 521, 86 S.W. 318; Payne v. Halstead, 44 Ill.App. 97; Stanley v. Steele, 77 Conn. 688, 69 L.R.A. 561, 60 A. 640; Parker v. G. O. Loving & Co., 13 Ga.App. 284, 79 S.E. 77. It must be admitted that language is used in all these opinions which tends to sustain the contention of counsel for appellees; but in regard to the last two mentioned cases it may be said that the injury to the occupant of the carriage resulted from a defect in the carriage itself, and the court said that the hirer of the carriage was only bound to use ordinary care and diligence in the selection of the vehicle. The language of the court to the effect that the owner was only required to use ordinary care and diligence to select a safe and careful driver is obiter, for the question of whether the master had furnished a competent and careful driver was not an issue in the case. In the first two cases, viz., McGregor v. Gill, supra, and Payne v. Halstead, supra, the injury was caused by the alleged negligence of the driver, and the court held that the only duty the owner owed to the person hiring the carriage was to use ordinary care in selecting a competent and skillful driver; but we do not think the holding of these courts can be sustained upon reason and principle. Indeed, a contrary doctrine to that announced by the Illinois Court of Appeals in Payne v. Halstead, was afterward held by the Supreme Court of that State in a case which we shall refer to later. It is a general rule of law that an injured person may recover against one or both of two wrong-doers between whom there is no concert of action, whose concurring acts produced the injury. In the application of this rule, this court held, in the case of Hot Springs Street Rd. Co. v. Hildreth, 72 Ark. 572, 82 S.W. 245, that one riding in a private conveyance as a guest of its driver, over whom he has no authority or control, and who is injured by the negligence of a third party and the contributory negligence of his entertainer, is not to be defeated in his action against the negligent third party by imputed contributory negligence. The reason that the driver's negligence is not imputed to the injured occupant of the carriage in such cases is that the relation of master and servant, or principal and agent, does not exist between the driver of the carriage and the person riding in it with him. If, on the other hand, a master is riding in his own carriage with his servant driving, and the master is injured by the concurring negligence of his driver and a third person, the master can not recover damages for his injuries from the third person because the negligence of his driver may be imputed to him. The reason that the negligence of the driver is imputed to the master is because the servant is under the direct control of the master. It is also generally held that the owner of an automobile who leases it with a licensed chauffeur in charge of it at a stated sum is liable to strangers for the negligent acts of the chauffeur, where the lessee has no control over him except as to when and where the car shall be driven. Shepard v. Jacobs, 204 Mass. 110, 26 L.R.A. (N. S.) 442, 90 N.E. 392, and cases cited. The court held that this case turned upon the law of master and servant, and in discussing the question of whether the servant in such cases was the servant of the master or the person...