Green v. Maddox

• Decision Date: 27 November 1933
• Docket Number: 30696
• Citation: 149 So. 882,168 Miss. 171,151 So. 160
• Court: Mississippi Supreme Court
• Parties: GREEN v. MADDOX

149 So. 882

151 So. 160, 168 Miss. 171

GREEN v. MADDOX

No. 30696

Supreme Court of Mississippi

November 27, 1933

Division B

October 2, 1933

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Action by Donnie Maddox against Marvin Green. Judgment for plaintiff, and defendant appeals. Affirmed.

ON SUGGESTION OF ERROR.

APPEAL from Supreme Court of Forrest county HON. W. J. PACK, Judge.

On suggestion of error. Suggestion of error overruled.

For original opinion, see 149 So. 882.

Affirmed. Suggestion of error overruled.

T. J Wills, of Hattiesburg, for appellant.

The most that can be said of the testimony favorable to the plaintiff is that he expressed a desire to go to New Orleans to see his wife and that the defendant gave him permission to go on his truck which was then shortly to leave for New Orleans.

Lutvin v. Dopkus, 108 A. 862.

There seems to be perfect harmony between the Louisiana law and the general law throughout the United States making the distinction between an invited guest and a bare licensee. Under the Louisiana law, supported by practically the unanimous decisions of all the states, appellee was not an invited guest but at most was a bare licensee on appellant's truck.

An invitation to use the premises of another is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using them.

37 C J., p. 161, note 26; Vargas v. Blue Seal Bottling Works, 126 So. 707; Coburn v. Village of Swanton, 115 A. 153; Vaughan v. The Transit Development Co., 222 N.Y. 79, 118 N.E. 219; Polluck v. M. & St. L. R. Co., 183 N.W. 859; Spence v. Polenski Bros., 193 N.W. 101; Gasch v. Rounds, 160 P. 962; T. O. & E. R. Co. v. McCarroll, 195 P. 139; Guiney v. Union Ice Co., 114 N.E. 137; Laporta v. N. Y. Cent. R. Co., 112 N.E. 643; Kruse v. H. & T. C. R. Co., 253 S.W. 623.

The only duty owed to a licensee by the owner of the premises is that he shall not wantonly or purposely injure him.

Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 2, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; Vargas v. Blue Seal Bottling Works, 126 So. 707; Hannah v. Ehrlich, 131 N.E. 504; Milauskis v. Terminal R. Assn. of St. Louis, 122 N.W. 78.; Brennan v. Keene, 130 N.E. 82; Shafer v. Tacoma Eastern R. Co., 157 P. 485; Costello v. Farmers Bank, 157 N.W. 982; Ky. Distilling Co. v. Leonard, 79 S.W. 281; Kidder v. Sadler, 103 A. 159; Watson v. M. & P. P. R. Co., 92 P. 17; Brown v. Pepperdine et al., 200 P. 36; Allen v. Y. & M. V. R. R., 71 So. 386; O'Kelley v. Mocklin, 140 So. 116.

Appellee, at the time of the injury sustained by him, was not an invitee in the truck of appellant but at most was only a licensee.

The Louisiana court has held that an act committed in violation of a city ordinance does not impose liability for injuries resulting therefrom unless the injury was the natural and direct consequence of the violation.

Vaughan v. N. O. Ry. Light Co., 13 Orl. App. 116.

The law fixing the statute of the plaintiff and the defendant and defining the duty that each owed to the other is the law of the state of Louisiana.

Paul B. Johnson and Earle L. Wingo, both of Hattiesburg, for appellee.

The plaintiff tried the case on the theory that he was an invitee on the truck and a guest with a duty on defendant to exercise reasonable care not to injure him. The defendant contended that the only duty defendant owed plaintiff was not to wilfully and wantonly injure plaintiff and that plaintiff was a trespasser.

The driver of automobile is bound to exercise reasonable care to avoid injuring guest.

Garner v. Baker, 108 So. 38, 214 Ala. 385.

It is the duty of automobile owner and driver who invites others into his car to exercise reasonable care and precautions for safety of his guests, without requests from them to that effect.

Timberlake v. Cassidy, 1 La. App. 630.

Automobile owner owes duty of reasonable or ordinary care for safety of invitee or permissee.

Hudson v. Jackson Brewing Co., 4 La. App. 549.

Truck driver's duty is to exercise reasonable care to avoid injury to invitee, and not merely to refrain from wilfully injuring him.

Rush v. McDonnell, 106 So. 175, 214 Ala. 47; Great Southern Lbr. Co. v. Hamilton, 101 So. 787, 137 Miss. 55; Denham et al. v. Taylor et al., 132 So. 372; Lawrason v. Richard, 135 So. 29; Barber v. El Dorado Lbr. Co., Inc., 139 So. 29; Reggis v. Karre, 139 So. 533; Beard v. Morris & Co., 156 La. 798, 101 So. 147; Quatray v. Wicker et al., 16 La. App. 515, 143 So. 313; Wurtzburger v. Oglesby, 131 So. 9; Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190; Reaves v. Maybank, 193 Ala. 614, 69 So. 137; McCauley v. Tenn. Co., 93 Ala. 356, 9 So. 611.

It is also well settled that the person transported is none the less a passenger, because he pays nothing for his carriage, or because he rides for his own convenience solely, by the courtesy of, and absolutely without profit to, the carrier.

5 A. & E. Enc. Law, 507; 1 Am. & Eng. Ann. Cas. 451, note; Indianapolis Traction Co. v. Klentschy, 167 Ind. 598, 79 N.E. 908, 10 Ann. Cas. 869; Harvey v. Deep River Logging Co. (1917), 49 Or. 583, 90 P. 501, 12 L. R. A. (N. S.) 131; McCauley v. Tenn. Coal, Iron & R. R. Co., 93 Ala. 356, 9 So. 611; L. R. A. 1916E, 1193; L. R. A. 1918C, 276; 20 A. L. R. 1014; Perkins v. Galloway, 194 Ala. 265, 69 So. 875; 26 A. L. R. 1425; 40 A. L. R. 1338; 47 A. L. R. 327; 51 A. L. R. 581.

The driver of an automobile, who has invited a guest to ride with him, is not absolved from responsibility for negligence or imprudence merely because he is performing a gratuitous service or favor to his companion.

Jacobs v. Jacobs, 74 So. 992, 141 La. 272.

There is an unbroken line of authorities from the state of Louisiana sustaining the contention of appellee.

Argued orally by T. J. Wills, for appellant, and by Paul B. Johnson, for appellee.

Anderson, J., Griffith, J., delivered opinion of the court on suggestion of error.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Forrest county to recover damages for a personal injury alleged to have been caused by appellant's negligence. There was a trial resulting in a verdict and judgment in appellee's favor in the sum of three thousand dollars. From that judgment appellant prosecutes this appeal.

Appellant ran freight trucks between Hattiesburg and other points in Mississippi and New Orleans, Louisiana. His headquarters and principal place of business were in the city of Hattiesburg.

Appellee's evidence, which was believed by the jury, was to the following effect: His wife was in New Orleans; he desired to visit her, and so stated to appellant. Appellant, in response, stated to appellee that one of his trucks was going to New Orleans immediately and that he could make the trip on that. This permission was accepted by appellee. The truck had a trailer attached by what is known as a rocking bolster. The truck was in charge of Isaiah Green and Hawkeye Edwards, and was being driven by Green when the injury occurred. They reached New Orleans in safety. There the trailer to the truck was loaded with freight. The injury to appellee occurred on the return trip in the city of Slidell, Louisiana.

Appellee alleged in his declaration, and his proof tended to show, that the driver of the truck, turned a right-angle street corner in the city of Slidell at a negligent rate of speed--something like from thirty to forty miles an hour. On the return trip appellee was riding on the trailer and Green and Edwards were in the seat of the truck. In turning the corner in Slidell at the excessive speed the bolster split, the trailer became disconnected and wrecked, throwing plaintiff out on the ground against a tree, resulting in injury to his head and nose, which his evidence tended to show was permanent.

The substantive rights of the parties are governed by the laws of the state of Louisiana where the injury occurred. D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415.

Appellant contends that he was entitled to a directed verdict upon the ground that appellee was a mere licensee and not an invitee; that as a licensee appellant owed him no duty except not to willfully or wantonly injure him, and there being no evidence of willfulness or gross negligence on the part of appellant, there was no liability. Appellant concedes that, under the law, if appellee was an invitee he was due reasonable care. To sustain his contention appellant refers to the dangerous premises doctrine, which is, briefly stated, that the owner of dangerous premises is not liable to a mere licensee thereon receiving an injury from such danger, except where the injury is the result of willfulness, wantonness, or gross negligence on the part of the owner of the premises.

The dangerous premises doctrine has little, if any, application. The controlling question is more nearly one of carrier and gratuitous passenger, or driver of an automobile and guest. Appellant voluntarily entered into a relation of a gratuitous character. He undertook to transport appellee to New Orleans and return. It is immaterial that appellee initiated the negotiations which resulted in the trip--that it was upon his request that appellant gave him the trip. The fact that appellee asked this favor of appellant, conceding that it made him a self-invited guest, we do not think gave him the legal status of either a licensee or a wrongdoer. The Supreme Court of Louisiana has determined this question against appellant's contention. Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253; Denham et al v. Taylor et al., 19 La. App. 814, 132 So. 372; Lawrason v. Richard, 172 La....