Penton v. Favors

• Decision Date: 13 January 1955
• Docket Number: 6 Div. 782
• Citation: 78 So.2d 278,262 Ala. 262
• Parties: William L. PENTON et al. (Penton-Coker Motor Company) v. Mrs. William H. FAVORS.
• Court: Alabama Supreme Court

Page 278

78 So.2d 278

262 Ala. 262

William L. PENTON et al. (Penton-Coker Motor Company) v. Mrs. William H. FAVORS.

6 Div. 782.

Supreme Court of Alabama.

Jan. 13, 1955.

Rehearing Denied March 10, 1955.

Marvin Williams, Jr., Davies & Williams, Birmingham, for appellants.

Clifford Emond, Birmingham, for appellee.

The following charges were refused to defendants:

21. I charge you, gentlemen of the jury, if you are reasonably satisfied from the evidence that the sole proximate cause of the accident was the failure of plaintiff's husband to properly inspect or repair the vehicle before driving it further on the highway and after knowledge of the alleged defective or dangerous condition, then your verdict should be for the defendants.

22. I charge you, gentlemen, that the burden of proof is on the plaintiff to reasonably satisfy you from the evidence that the brakes or steering mechanism of the automobile were in a defective and dangerous condition when the car was delivered to plaintiff's husband, that such condition proximately caused or contributed to the injury, and that defendant knew or by the exercise of reasonable care should have known of said condition, and if you are not reasonably satisfied that all of the foregoing items are true, then your verdict should be for defendant.

PER CURIAM.

This is an appeal by defendants from a judgment for personal injuries received by plaintiff while riding in an automobile belonging to defendants who had loaned it to the plaintiff's husband and which was being driven by him; but the accident was not charged in the complaint to have been due to his negligence or incompetency.

The suit was submitted to the jury on two counts, 'B-1' and 'C', virtually the same in legal effect. So far as here material, count B--1 alleges that plaintiff's husband was at that time a purchaser or prospective purchaser of a used automobile from defendants that defendants delivered to him a used automobile for use by him until they could deliver the automobile that was being purchased by him, and authorized him to drive said automobile on the public highways in the State until they could deliver to him said car being purchased; that the brakes or steering mechanism on the car thus loaned were in a defective condition; and while plaintiff was riding in said automobile as a passenger, the car being operated on a described highway in Alabama, the brakes or steering mechanism locked rendering it impossible to steer, thereby causing the car to run off the highway and to injure plaintiff as described in the complaint. It is averred that her injuries were caused as a proximate result of the negligence of defendants in negligently delivering said used automobile to plaintiff's husband and authorizing him to operate and drive it over and along the public highways in the State with the brakes or steering mechanism of said automobile in a defective and dangerous condition.

The first assignment of error goes to the judgment overruling a demurrer to count B-1, supra. It was apparently patterned after the complaint upheld in the case of Al DeMent Chevrolet Co. v. Wilson, 252 Ala. 662, 42 So.2d 585, and in many respects the two cases are similar. In the DeMent case the injured person was not riding as a passenger in the car, but on account of the brakes locking a wheel the car ran into plaintiff's vehicle then and there on the same street. That is the same legal status of the cases of Motor Terminal & Transportation Co. v. Millican, 244 Ala. 39, 12 So.2d 96, and McGowin v. Howard, 251 Ala. 204, 36 So.2d 323.

Appellants contend that the same principle does not apply here because appellee is alleged to have been a passenger in the car and, therefore, subject to our guest statute. Section 95, Title 36, Code. That question is raised by a ground of the demurrer. The complaint does not allege that appellee (plaintiff) was riding as a guest in the car without the payment of compensation therefor. But if the statute here applies, the duty would be on defendants to plead it unless the complaint on its face shows its application. The complaint is based on a common law cause of action, of which the court has general jurisdiction. Aircraft Sales and Service, Inc., v. Gnatt, 255 Ala. 508, 52 So.2d 388; Blashfield on Automobile Law and Practice, section 2313, page 361, note 15.5.

When the court is of general jurisdiction, and the claim as alleged is one which is prima facie within that jurisdiction, it is not necessary to alleged additional facts with respect to it in order to state a cause of action. But where the jurisdiction of the court over the cause of action is statutory and limited it is indispensable that the jurisdictional facts specified in the statute be alleged. 71 C.J.S., Pleading, § 76, page 191; Town of Flat Creek v. Alabama By-Products Corp., 245 Ala. 528, 17 So.2d 771. And when a cause of action is statutory the complaint must negative an exception contained in the enacting clause, but not so if it is in a subsequent clause. Jefferson County v. Gulf Refining Co., 202 Ala. 510, 80 So. 798.

Since the circuit court is one of general jurisdiction, and the cause of action is not statutory, it is not necessary to allege facts which show that it is not one specially excepted by statute. It is the limitation which is statutory and not the creation of the cause of action. Section 95, Title 36, Code. For that reason the demurrer on that ground is not well taken--not to consider other grounds.

We are not willing to agree that the guest statute is controlling on defendants as to their measure of duty to a guest of their bailee riding in the car loaned to him. But we think it is a question of proximate cause and relates to principles generally applicable to a bailment of the car. We think it is important to consider the duty of defendants to Favors who was their bailee, although plaintiff was riding as a passenger with the bailee. It is said in 60 C.J.S., Motor Vehicles, § 430, page 1057, that 'a gratuitous bailor of a motor vehicle may not furnish the bailee with an unsafe and unmanageable vehicle for a purpose which will endanger life and limb, and is liable for injuries, proximately resulting from the defect, to third persons who are without fault themselves. However, a gratuitous bailor owes to his bailee only the duty of giving warning or notice of those defects in the car, if any, of which he has knowledge and which in reasonable probability will imperil those using it; and an owner furnishing his car to another for the latter's gratuitous use is not responsible for an injury to the user caused by a defective condition of which the owner did not know when he turned the car over to the user, where, in the exercise of reasonable judgment, he could not have foreseen the probable injury to the user; and the same holding has been made where the lender has no actual knowledge of the defect, even though he should have known of it'. Blom v. McNeal, 199 Minn. 506, 272 N.W. 599.

But where the bailment is not gratuitous, it is said, 60 C.J.S., Motor Vehicles, § 430, pages 1055, 1056: 'The owner may also be responsible for resulting injuries where be could have discovered the defective condition of the motor vehicle by the exercise of reasonable care, although the owner is not responsible if a latent defect which causes an accident could not have been discovered by appropriate care and inspection of the automobile'. Mallory Steamship Co. v. Druhan, 17 Ala.App. 365, 84 So. 874; Aircraft Sales and Service, Inc., v. Gnatt, supra. The case of Motor Terminal & Transportation Co. v. Millican, supra [244 Ala. 39, 12 So.2d 99], quotes from Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333, among other things, as follows: "We intend only to hold that he (one engaged in letting automobile for hire) must exercise reasonable diligence to know the condition of his machines before letting them into the hands of drivers for use on the highways. He must in that regard exercise such simple and available tests as the intended use would suggest to sensible and right-minded persons--the jury being at last the judges".

We think the duty to inspect has the same application to one other than the bailee, who is likely to be subjected to the danger of the defects, as it has to the bailee. This includes those riding with him. 7 Blashfield on Automobile Law and Practice, section 4672 (notes 63 and 64), page 655; Rush v. McDonnell, 214 Ala. 47, 106 So. 175; Eklof v. Waterston, 132 Or. 479, 285 P. 201, 68 A.L.R. 1002; Johnson v. H. M. Bullard Co., 95 Conn. 251, 111 A. 70, 12 A.L.R. 766.

If an owner knows or should anticipate that the one to whom he lends or lets his car will use it on the streets and highways and carry others with him and thereby be subjected to the dangers incident to its defective condition he owes to those others the same duty of inspection that he owes to the bailee. Johnson v. Bullard, supra. The owner has no privity with such persons, and is not affected by the relationship existing between his bailee and them. They occupy the same relation to the bailor which the bailee occupies in respect to such duty if their presence should have been anticipated when the bailment was created. The guest of the bailee, if his presence was foreseeable, is by that circumstance clothed with the same protection, regardless of the relation between him and the bailee. There is no ground of demurrer that the complaint does not allege that defendants anticipated that their bailee would carry a passenger while driving the car.

It is also insisted that the complaint is defective in not alleging that defendants had knowledge of the defective condition of the car when they let Favors have it to use. This is an essential issue in the case if the bailment is gratuitous. But if it is for hire or based upon other valuable consideration, there is a duty to make reasonable inspection as to its...