Garner v. Baker

• Decision Date: 08 April 1926
• Docket Number: 7 Div. 611
• Parties: GARNER v. BAKER.
• Court: Alabama Supreme Court

108 So. 38

214 Ala. 385

GARNER v. BAKER.

7 Div. 611

Supreme Court of Alabama

April 8, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Lola Garner against D.L. Baker. Plaintiff took a nonsuit and appeals from adverse rulings on pleading. Reversed and remanded.

Culli Hunt & Culli, of Gadsden, for appellant.

O.R Hood, of Gadsden, for appellee.

SOMERVILLE J.

In B.R.L. & P. Co. v. Adams, 40 So. 385, 146 Ala. 267 272, 119 Am.St.Rep. 27, it was held that a count showing that the plaintiff was a passenger in the defendant's car, operated by the defendant at the time of the injury, though not a common carrier, sufficiently showed the relationship and the resulting duty not to negligently injure the plaintiff while so transporting him. To the same effect is Lawrence v. Kaul Lumber Co., 55 So. 111, 171 Ala. 300, 305. On the authority of those cases, count 2 of the complaint in this case must be held not subject to the demurrer, and the demurrer was erroneously sustained.

In this state, as probably everywhere else, it is settled that the operator or driver of a motorcar, or other vehicle, is bound to exercise reasonable care to avoid injuring any one whom he is transporting as his guest. Perkins v. Galloway, 69 So. 875, 194 Ala. 265, L.R.A.1916E, 1190; McGeever v. O'Byrne, 82 So. 508, 203 Ala. 266; Powell v. Berry, 89 S.E. 753, 145 Ga. 696, L.R.A.1917A, 306; 13 Neg. & Comp. Cases, 858, and notes.

And, on the principle of respondeat superior, the owner of the car must be held liable to one riding therein as his guest, whether such owner is driving the car in person, or by his authorized agent or servant, with or without the presence of the owner in the car. See Powers v. Williamson, 66 So. 585, 189 Ala. 600. But, as held in that case, one who is riding as a guest in the car, though the car is being driven by the owner's agent or servant duly authorized thereto, may be the guest of the agent or servant, and not of the owner; and, if the driver, though acting duly for his master in the operation of the car, was not acting for him in accepting and transporting the guest, the master and owner could not be held liable. Powers v. Williamson, supra. Hence the fact that the driver of the car, though operating it as the servant of the owner, invites a passenger to become his (the driver's) guest, does not as to such guest make the driver the servant of the owner in respect to the safe transportation of the guest.

Applying these principles to the case before us, we hold that counts 3, 5, and 6 state a cause of action within those principles, and are not subject to any of the grounds of demurrer assigned. As to those counts, the demurrer was erroneously sustained.

Count 4 differs from count 6 in but one particular--it does not categorically aver that the plaintiff was the guest of the defendant. But, under the principles declared in Lawrence v. Kaul Lumber Co., 55 So. 111, 171...