Harrison v. McCleary

• Decision Date: 26 January 1967
• Docket Number: 6 Div. 270
• Citation: 281 Ala. 87,199 So.2d 165
• Parties: James W. HARRISON et al. v. J. E. McCLEARY.
• Court: Alabama Supreme Court

Page 165

199 So.2d 165

281 Ala. 87

James W. HARRISON et al. v. J. E. McCLEARY.

6 Div. 270.

Supreme Court of Alabama.

Jan. 26, 1967.

Rehearing Denied June 1, 1967.

Robt. McD. Smith and Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.

Hare, Wynn, Newell & Newton, Birmingham, for appellee.

PER CURIAM.

The appellee, plaintiff below, sued James W. Harrison, Vulcan Materials Company, Birmingham Transit Company and J. C. Perry (the bus driver) for personal injuries resulting from an accident involving the automobile in which he was riding and a Birmingham Transit Company bus.

The jury returned a verdict in favor of plaintiff and against Harrison and Vulcan Materials in the amount of $30,000. It returned a verdict in favor of Perry and Birmingham Transit Company.

The appellant Harrison was driving an automobile which ran into the rear of the bus which had stopped on the right side of the street to allow passengers to get on and off. The plaintiff McCleary was riding in Harrison's automobile at the time of the accident, on the front seat with the driver. At the time of the accident, Harrison was the national sales manager for Vulcan Signs and Stamping Division of Vulcan Materials Company. McCleary was a resident of Venice, Florida and was a distributor of municipal street signs manufactured by Vulcan Sign and Stamping Division of Vulcan Materials Company. McCleary had stopped in Birmingham en route to his home in Florida from Ohio. He arrived in Birmingham around 10:00 A.M. of the day during which the accident happened. Immediately upon his arrival in Birmingham he went to the Vulcan plant and discussed business with Harrison until about 2:00 P.M. During this period of time Harrison offered to take McCleary to dinner that night. It was agreed that he would pick him up at his motel later. He did pick him up and the accident occurred while they were en route from the motel to a downtown hotel where Harrison testified they were to have dinner.

The case went to the jury on a single count charging all four defendants with negligence, and containing the following averments:

'* * * and the plaintiff was present on said occasion in the said automobile * * * not in the status of a guest within the meaning of the Alabama Guest Statute but as a business invitee of the defendants * * * and upon the express or implied invitation of the defendants James W. Harrison and Vulcan Materials Company, a corporation, on a mission or trip related to the business of defendants James W. Harrison and Vulcan Materials Company * * * which afforded a substantial benefit to the defendants James W. Harrison and Vulcan Materials Company * * * for transporting the plaintiff in said automobile as aforesaid; * * *'

As noted, the jury returned a verdict for the plaintiff against the two defendants who have appealed here.

Appellant Vulcan raises issues not raised by Harrison but each bases the appeal on the contention that the Alabama Guest Statute was applicable and that the court erred in failing to give charges which in effect would have taken the case from the jury on this issue. In other words, it is the contention of the appellants that under the facts as adduced at the trial the court should have ruled as a matter of law that the case fell within the guest statute. (Error is also urged for failure to grant a new trial on timely motion.)

This court has had several cases before it involving the application of Title 36, § 95, Code, which is as follows:

'Liable only for willful or wanton misconduct.--The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'

As noted in Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434, 59 A.L.R.2d 331, our statute does not undertake to define 'guest.' The definition of the term has been left to the court.

In an effort to discharge this responsibility, we have had occasion to express certain general rules, for example, the following from Wagnon v. Patterson, 260 Ala. 297, 70 So.2d 244:

"The general rule is that if the transportion of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, good will or the like, on the person furnishing the transportation, the rider is a guest; but if his carriage tends to promote the mutual interest of both himself and driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest."--Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342.

Further, in Blair v. Greene, 247 Ala. 104, 22 So.2d 834:

"If the excursion is not purely social, any benefit to the driver of the automobile conferred or anticipated or mutual benefit present or anticipated to the driver and the person carried is sufficient to take the case out of the automobile guest statute."--Humphreys v. San Francisco Area Council, etc., Cal.App., 129 P.2d 118.

In 1962, the rule was said to have been established by Blair v. Green, supra, Sullivan v. Davis, supra, and Klein v. Harris, 268 Ala. 540, 108 So.2d 425, that

'* * * if the trip is for any benefit to the driver, conferred or anticipated, it is sufficient to take the case out of the guest statute, but a mere incidental benefit to the driver is not sufficient. The benefit to the driver must in some way have induced the driver to extend the offer to the rider, and the benefit must be material and...