Galloway v. Perkins

• Decision Date: 07 December 1916
• Docket Number: 7 Div. 799
• Citation: 198 Ala. 658,73 So. 956
• Parties: GALLOWAY v. PERKINS.
• Court: Alabama Supreme Court

73 So. 956

198 Ala. 658

GALLOWAY v. PERKINS.

7 Div. 799

Supreme Court of Alabama

December 7, 1916

Rehearing Denied Jan. 18, 1917

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Ira Perkins, as administratrix, etc., against Charles Galloway. From judgment for plaintiff, defendant appeals. Affirmed.

Culli &amp Martin, of Gadsden, for appellant.

Dortch & Allen and Inzer & Inzer, all of Gadsden, for appellee.

MAYFIELD J.

This case involves the extent of the liability of the owner or operator of an automobile to a guest, as for injury or death caused by the overturning of the automobile. This is the second appeal. See report of former, Perkins v Galloway, 69 So. 875, L.R.A.1916E, 1190. On the former appeal the authorities, both English and American, state and federal, as well as the text-books on the subject, were reviewed at some length by Justice Thomas; and it was there held:

"1. One not a common carrier, who voluntarily undertakes to transport another, is responsible for injury to the person transported resulting from negligence, whether the service was for compensation or was gratuitous.

"2. Where the occupant of an automobile has no control over the driver, even though the relation of carrier and passenger does not exist, the doctrine of imputed negligence does not apply to the passenger.

"3. The duty of the owner and driver of an automobile to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of the method of travel but he must exercise the care and diligence which a man of reasonable prudence engaged in like business would exercise for his own protection and the protection of his family and property."

We are urged on this appeal to modify the holding (or at least the opinion) on the former appeal, and that in the case of Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So 111, as to the relation existing between plaintiff's intestate and the defendant at the time of the injury. It is forcibly argued that intestate was not a passenger and that the defendant was not a gratuitous carrier at the time of the injury, that this relation did not exist, and that therefore the duties and liabilities incident thereto did not arise or exist. It is very true, as argued, that there is a vast difference as to some duties and liabilities, when the relation of common carrier and passenger exists, and when that of private carrier and passenger exists, whether the carriage is for hire or is gratuitous. There is nothing decided or said which destroys or overlooks this distinction in proper cases for the application for the distinction. The complaint alleged, and the evidence tended to show, that intestate at the time of the injury was the guest of defendant, and was being carried as such to Gadsden, and that his death was proximately caused by the negligence of defendant in operating the automobile in which they were riding. This being true, the law seems to be settled that the defendant is liable for the injury to, or the wrongful death of, his guest, if there be a statute imposing liability as for such wrongful death. It is therefore immaterial whether the parties be spoken of as carrier and passenger or host and guest.

It does seem to be a harsh or hard rule which makes the carrier or host liable to the passenger or guest as for injury or death, in the absence of gross negligence or wantonness, especially when the passenger or guest is treated by the carrier or host, just as the latter himself is treated, and when both are injured by the same accident, as in this case. If this be so, the reply is: The law is so written, and cannot and should not be changed to meet hard cases; such instability would make shipwreck of the law.

The liability of the owner of an automobile to a guest riding for pleasure only was recognized, but not decided, in the case of Powers v. Williamson, 189 Ala. 600, 66 So. 585. That decision, however, went off on the ground that the owner of the machine was not in that case liable for the negligence of his son, who was operating the car; that is, that the doctrine of respondent superior did not apply in that case. It is, however, a necessary conclusion that the owner would have been held liable in that case had the son been held to be the agent of his father, the defendant, or had the father, who was the owner, been operating the machine and been guilty of negligence proximately contributing to the injury.

It is very true that it has been held that a gratuitous carrier of goods, like a gratuitous bailee of goods, is not liable to the owner of the goods, in the absence of gross negligence. This distinction is well pointed out by Mr. Hutchinson (Carriers, vol. 2, § 1022, p. 1179), who says:

"This, it will be observed, is different from the well-settled rule in regard to the gratuitous carriage of goods, which, as has been seen, does not impose upon the common carrier the same degree of responsibility as when the carriage is for compensation, and this illustrates the different light in which the two kinds of business are viewed by the law. The carrier of goods becomes an insurer of their safety only when he is paid to become so; but the carrier of the passenger is bound to the utmost care and caution, whether paid by the passenger or not; and this distinction is based upon wholly different

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