Saunders System Birmingham Co. v. Adams

• Decision Date: 12 April 1928
• Docket Number: 6 Div. 991
• Citation: 217 Ala. 621,117 So. 72
• Parties: SAUNDERS SYSTEM BIRMINGHAM CO. v. ADAMS.
• Court: Alabama Supreme Court

117 So. 72

217 Ala. 621

SAUNDERS SYSTEM BIRMINGHAM CO. v. ADAMS.

6 Div. 991

Supreme Court of Alabama

April 12, 1928

Rehearing Denied May 31, 1928

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Jett E. Adams against the Saunders System Birmingham Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Altman Taylor & Koenig, of Birmingham, for appellee.

SAYRE J.

Defendant Saunders System, let an automobile for hire to Bertie Green as "driver." The machine, while being operated by the driver, ran against plaintiff, Adams, causing injuries on account of which she brought this suit, alleging--in count D on which alone the case went to the jury--that defendant had negligently rented the car to the driver "with the brakes of said car in a defective and dangerous condition," as a proximate consequence whereof she suffered injuries described in the complaint. Numerous grounds of demurrer were assigned to this count, and some of them are repeated in the assignments of error and in appellant's brief. Those requiring notice are to the effect, briefly stated, that no privity of contract between plaintiff and defendant was shown; that there was no averment that defendant knew or could have known, the defective condition of the brakes; that an automobile is not an "immediately dangerous vehicle"; that there is no sufficient allegation of negligence; that proximate causal connection between the negligence alleged and plaintiff's injury is not shown.

The question involved relates to the alleged negligence of one who rented or let to hire an automobile, to the driver who was operating the machine at the time of plaintiff's injury. In Parker v. Wilson, 179 Ala. 370, 60 So. 150, 43 L.R.A. (N.S.) 87, we stated our opinion that automobiles are not to be classed with such highly dangerous agencies as dynamite or savage animals; that they are not dangerous per se. That opinion has expressly or by necessary implication been approved in the more recent cases of Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A.1917F, 380, and Beville v. Taylor, 202 Ala. 305, 80 So. 370. Of course the court in those cases was speaking of automobiles properly constructed and in good repair. The question now is whether the defendant owed the duty of care and diligence in and about the condition of the machine, to any one but the driver, that is, to plaintiff in this case. In view of the fact that the automobile was let for use on the streets and highways of the neighborhood, and that a machine of that sort without brakes or with defective and inefficient brakes, when used in the highways (including the public streets of Birmingham), is a dire menace to every one who may come into its close vicinity, we have no difficulty in reaching the conclusion that one who lets an automobile for hire with knowledge or notice that it will be used upon the public highways, thus involving probable danger to others than the driver, is under duty to inspect the machine to the end that such danger may not arise. Every one of good sense and having proper regard for his fellows must foresee the danger, and, foreseeing, must take reasonable precaution against it. There is no intention to suggest that a person engaged in defendant's business becomes a guarantor of the absolute integrity of the machines he lets. We intend only to hold that he 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.

The duty of diligence arises, not entirely out of contract, but out of obligations imposed by law on every one in his...