Rush v. McDonnell

Decision Date22 October 1925
Docket Number1 Div. 345
Citation214 Ala. 47,106 So. 175
PartiesRUSH v. McDONNELL et al.
CourtAlabama Supreme Court

Rehearing Denied Nov. 19, 1925

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Arthur L. Rush against Thomas H. McDonnell and James Glennon McDonnell. Plaintiff takes a nonsuit, and appeals from adverse rulings on demurrer to the complaint. Reversed and remanded.

Complaint for death from injury received while riding in automobile driven by defendant's incompetent minor son, with defendant's knowledge, held to state good cause of action on common-law principles, and within Acts 1911, p. 634,§ 22.

Count 3 of the complaint as amended is as follows:

"(3) The plaintiff, suing as the father of Arthur Eugene Rush, a minor under the age of 21 years, deceased, claims of the defendant Thomas Henry McDonnell the further sum of $50,000 damages for that heretofore, to wit, on the 31st day of March, 1923, the said defendant did own and possess an automobile which he did then loan to his minor son, James Glennon McDonnell, a youth under the age of 16 years, and did then negligently permit and allow the said James Glennon McDonnell to take and drive the same for his own personal pleasure and entertainment, and for the pleasure and entertainment of such other persons as he might invite and take into said automobile with him, unaccompanied by the said defendant, or any other adult person, although, as plaintiff avers, the said James Glennon McDonnell was wholly incompetent and unfit to drive said automobile, as was then well known to the said defendant; that on said day and on said occasion, after nightfall, the said James Glennon McDonnell, being so possessed of said automobile, and in sole control of its operation, did invite and take into said automobile, among other persons, all minors under the age of 21 years, the said Arthur Eugene Rush, a minor son of the plaintiff, under the age of 21 years, for a pleasure ride and thereupon he did drive said automobile, with the said Arthur Eugene Rush and others therein, over certain streets in the city of Mobile and out a certain road leading outside the city of Mobile, known as the Cedar Point road, and returning from said Cedar Point road, along and over Broad street, a public and populous thoroughfare in the city and county of Mobile, and then and there the said James Glennon McDonnell did so carelessly, negligently and improperly operate said automobile that it was caused to collide with another automobile then parked on the east side of Broad street, and was caused to be overturned, or partly overturned, and the plaintiff's said son, Arthur Eugene Rush, was thereby thrown from said automobile to the ground or was pinioned underneath it, and was thereby injured and killed, all, as the plaintiff avers, as the proximate result of the said defendant's negligence and the concurring negligence and incompetency of the said James Glennon McDonnell, as aforesaid, to the damage of the plaintiff in the said sum of $50,000 as aforesaid, wherefore the plaintiff sues."

Amended count 4 is the same as count 3 except that it alleges that defendant's son "did willfully and wantonly injure and kill the plaintiff's said son, Arthur Eugene Rush, by willfully or wantonly operating said automobile, over said populous thoroughfare at a great, excessive, and reckless rate of speed," etc., and that plaintiff's son was injured and killed "as the proximate result of the negligence of the said defendant and the concurring willfull or wanton acts of the said James Glennon McDonnell," etc.

The following grounds of demurrer were interposed to the amended third count:

"(1) The allegations of said count fail to state a cause of action against the defendant.
"(2) Because said complaint alleges no facts showing that this defendant owed any duty to the deceased with regard to the matters complained of.
"(3) Because said complaint alleges no facts showing that this defendant was guilty of any breach of any duty owed by him to the deceased.
"(4) It is not alleged that Arthur Eugene Rush was a member of the family of Arthur L. Rush.
"(5) Because this defendant owed the deceased no duty not to lend his automobile to defendant's said son, James Glennon McDonnell.
"(6) Because under the facts alleged in said count the deceased occupied the position of a mere licensee in said automobile at the time of his said injury and death.
"(7) Because there are no facts alleged showing that the injury and death of the decedent was due to the alleged incompetency and unfitness of the said James Glennon McDonnell to drive said automobile.
"(8) Because there are no allegations in said count showing that this defendant, at the time that he loaned his automobile to his son, knew that his son intended or expected to invite the deceased, or any other person, to ride in said automobile with him.
"(9) It is not alleged that, at the time Thomas Henry McDonnell consented or permitted James Glennon McDonnell to use said automobile, the said Thomas Henry McDonnell knew that the said James Glennon McDonnell was wholly incompetent and unfit to drive the same.
"(10) It is not alleged that, at the time of the injury complained of, the said Thomas Henry McDonnell knew that the said James Glennon McDonnell was incompetent and wholly unfit to drive said automobile.
"(11) It is not alleged that Glennon McDonnell was either the agent, servant, or employee of Thomas Henry McDonnell and acting within the line and scope of his authority at the time of the accident.
"(12) It is not alleged that at the time of said injury that the said James Glennon McDonnell was then and there driving said automobile with the knowledge and consent of the said Thomas Henry McDonnell.
"(13) The allegations of said count, at best, merely show that this defendant, Thomas Henry McDonnell, had previously permitted the use of said car by James Glennon McDonnell.
"(14) It affirmatively appears from the allegations of the complaint that, so far as the liability of this defendant is concerned, the injury was proximately caused by the negligence of the deceased riding with a driver at a time when he knew the driver to be incompetent and wholly unfit to drive said automobile.
"(15) It affirmatively appears upon the face of said count that the alleged negligent, permissive use of said car by Thomas Henry McDonnell was not the proximate cause of said injury.
"(16) It is not alleged that any negligence on the part of Thomas Henry McDonnell proximately caused the injury complained of.
"(17) Because said count is inconsistent with and contradictory of itself in that it alleges both that the injury was due to the incompetency of the driver and that it was caused by the negligence of said
driver.
"(18) Because said count alleges no facts showing that the defendant owed any duty to the deceased not to allow the defendant son, James Glennon McDonnell, to operate said car.
"(19) It is not alleged that this defendant knew that the deceased contemplated riding in his car at the time of the accident. "(20) It is not alleged that the defendant authorized his son to invite the deceased to ride in his car.
"(21) It is not alleged that the defendant intentionally or wantonly injured or caused to be injured the deceased.
"(22) It affirmatively appears upon the face of said count that the deceased assumed the risk of the carriage so far as this defendant is concerned.
"(23) It appears upon the face of said count that the deceased was an invitee of James Glennon McDonnell and was being carried in said automobile without the knowledge or consent of this defendant.
"(24) It is not shown by the allegations of said count that this defendant, in permitting or allowing his son to use said automobile, violated any duty running to the deceased or the plaintiff.
"(25) The allegations, at best, merely establish an error of judgment.
"(26) The defendant is not alleged to have been guilty of any wanton or willful act or omission, as distinguished from simple negligence, as would make him liable for the negligent operation by his son of said automobile, resulting in the injury complained of.
"(27) It is not alleged that said defendant wantonly or intentionally injured or caused to be injured the deceased.
"(28) Because under the allegations of said count the plaintiff seeks to hold this defendant liable for the injury resulting from the negligent operation of an automobile by his son, whereby his son's guest was injured."

The foregoing grounds of demurrer were interposed to the amended fourth count, and in addition thereto the following grounds:

"(1) Because said count shows that the injury and death of the deceased was not the proximate result of the incompetency of the said James Glennon McDonnell to drive said automobile.
"(2) Because said count shows that the injury and death of the deceased was due to the willfulness and wantonness of the said James Glennon McDonnell and not to his incompetency.
"(3) Because said count of complaint shows that the injury and death of the deceased was due to the negligence of the defendant James Glennon McDonnell, and not to his incompetency.
"(4) Because said complaint does not show any duty on the part of this defendant to the deceased to exercise reasonable care to prevent James Glennon McDonnell from driving his automobile.
"(5) Said count is contrary and inconsistent in that it alleges that the injury was caused by the defendant's negligent permissive use of the automobile, and in the same count it is alleged that James Glennon McDonnell did willfully or wantonly injure or kill the complainant's son.
"(6) It appears upon the face of said count that the injury was proximately caused by the willful and wanton or intentional act of James
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