Wagnon v. Patterson, 1 Div. 540

• Decision Date: 21 January 1954
• Docket Number: 1 Div. 540
• Citation: 70 So.2d 244,260 Ala. 297
• Parties: WAGNON v. PATTERSON.
• Court: Alabama Supreme Court

Page 244

70 So.2d 244

260 Ala. 297

WAGNON v. PATTERSON.

1 Div. 540.

Supreme Court of Alabama.

Jan. 21, 1954.

T. K. Jackson, Jr., and Inge, Twitty, Armbrecht & Jackson, Mobile, for appellant.

Herndon H. Wilson, Mobile, for appellee.

MERRILL, Justice.

Defendant, Mr. Wagnon, has appealed from a judgment in the Circuit Court of Mobile County in favor of plaintiff, Mr. Patterson, against him and Mrs. Ella Jean Weeks, who has not joined in this appeal. The judgment against both defendants was under Count One of the complaint as amended, which charged simple negligence. The complaint was in two counts. Count two charged both defendants with wilful or wanton conduct. The trial court submitted both counts to the jury.

The plaintiff, Mr. Patterson, was an occupant of Mr. Wagnon's automobile at the time that it was involved in an accident with an automobile of the other defendant, Mrs. Ella Jean Weeks. Mr. Patterson and Mr. Wagnon were both employed at Brookley Field.

On the afternoon of the accident they left Brookley Field at approximately four p. m. and proceeded north on Washington Avenue, a thoroughfare in the City of Mobile. Mr. Wagnon was driving. Mr. Patterson was sitting to his right on the front seat and one Mr. Elbe was sitting alone on the back seat. As Mr. Wagnon approached the intersection of Washington Avenue and Charleston Street, he was driving at a speed of approximately 20 to 30 miles per hour. There were no cars in front of him within one-half block. There was a blinker light at this intersection, blinking yellow or amber toward the traffic approaching from the south, as was Mr. Wagnon, and blinking red toward traffic approaching from the east, which was the direction from which Mrs. Weeks was approaching. As Mr. Wagnon entered the intersection from the south, the automobile driven by Mrs. Weeks entered from the east. It is undisputed that Mrs. Weeks slowed her car at the intersection, but she stated that as she reached for the brake with her foot, she stepped on the accelerator and drove her automobile into Mr. Wagnon's automobile. As a result of this collision Mr. Patterson received serious injuries.

The assignments of error raise the questions of law as to (1) whether the allegation that plaintiff was riding in defendant's automobile 'on a share expense basis' was subject to appellant's demurrer, (2) whether there was liability under the Alabama Guest Statute, (3) whether the injection of the matter of insurance coverage entitled defendant to a mistrial and (4) whether the motion for a new trial should have been granted.

Count One, as amended, the amendment being italicized reads as follows:

'The plaintiff claims of the defendants Twenty-Five Thousand Dollars ($25,000.00), as damages for that he avers that on, to-wit, the twenty-third day of February, 1950, the defendant, Joseph Wagnon, was running or operating an automobile upon and along Washington Avenue, a public street in the City and County of Mobile, State of Alabama, and the defendant, Ella Jean Weeks, was running or operating an automobile along or upon Charleston Street, a public street of said City, County and State, and then and there the two defendants so negligently operated said respective automobiles that said automobiles, with great force and violence, collided at the intersection of said Washington Avenue and Charleston Street, and as a proximate result and consequence thereof, plaintiff who was then and there a passenger on a share expense basis of the said defendant Joseph Wagnon in the said automobile so run and operated by Joseph Wagnon, received many physical injuries externally and internally, was permanently injured, received permanent scars, was caused to suffer much physical and mental pain, was caused to expend large sums for medical, surgical, and hospital treatment, the taking of X-Rays, nurses' attention, doctors, etc., for his treatment, and will probably have to incur further expenses in the future; was caused to miss much time from work; for all of which he claims damages as aforesaid, hence this suit.'

Defendant Wagnon demurred to this count on the ground that it did not show the existence of a relationship between plaintiff and defendant Wagnon by which a duty was imposed on Wagnon not to negligently injure Patterson.

Our Guest Statute, Title 36, § 95, Code of 1940, reads:

'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.'

We think the allegation that plaintiff was a 'passenger on a share expense basis' is of such certainty as to apprise defendant that plaintiff was thereby asserting that he was not riding as a guest of defendant. 'With respect to a count in a complaint charging negligence, it is sufficient to allege only the facts and circumstances from which the law imposes a duty to the plaintiff, and then a general charge of negligence in performance of that duty without a statement of the particular manner in which it was negligently performed. 15 Alabama Digest, Negligence, k111(1), pages 336, 337.' Birmingham Electric Co. v. Carver, 255 Ala. 471, 474, 52 So.2d 200, 203.

The question as to whether or not plaintiff was a guest in the case at bar, is a close and difficult one, and rather than attempt to give the effect of the evidence on this subject, we set it out in full.

Plaintiff on direct examination:

'Q. What, if any, arrangements were there between you and Mr. Wagnon as to your transportation? A. I only rode in the afternoon, and I agreed to give him 50cents a week or a dollar a pay day. I just rode with him in the afternoon, just one way with him in to town, sharing the expense of the gasoline.

'Q. That, was the arrangement? A. Yes, sir.

'Q. How long had you been doing that? A. Ever since Mr. Wagnon been bringing his car.

'Q. Well, about how long before this accident occurred? How long before the accident had you been doing that? A. About six or eight months.

'Q. And you had paid him regularly. A. Yes, sir. * * *'

Plaintiff on cross-examination:

'Q. As a matter of fact you do remember the first two times you rode with him, there wasn't anything said about paying him for it, don't you? A. No, sir. There was a mutual agreement made that I would pay him 50cents a week to help share the expense of the gasoline--a dollar every pay day.

Q. A dollar every pay day? A. Yes, sir, because I just rode in the afternoon.

'Q. And you say you don't remember when that conversation took place? A. I just know that it was before I started riding with him.

'Q. Was it before you rode with him the first time? A. Yes, sir.

'Q. Did you or not make a written statement as follows: Every pay day I would give him 50cents to help out with the gas and oil. This, however, was not a charge, but more or less a donation. Did you or did you not make that written statement? A. I made a statement after I came home from the hospital but I don't know whether I made that statement or not.

'Q. I beg your pardon. A. I had just been home from the hospital about a week and I made a statement to the adjustor. Whether that was the exact words or not, I don't know.

'Q. Did you make that statement or did you not? A. I said the adjustor came out there and I hadn't been home but about a week. I made a statement but I don't remember it.

'Q. Did you or did you not make that statement I just read to you? A. Not 50cents a pay day. It was 50cents a week, a dollar a pay day.

'Q. Did you or did you not state that this money was not a charge but was more or less a donation? A. That it was a share on the expenses of the gasoline.

'Q. Won't you please answer my question, Mr. Patterson: Did you or did you not make a written statement as follows: Every pay day I would give him 50cents to help out with the gas and oil. This, however, was not a charge but more or less a donation. Did you or did you not make that statement? A. We made the agreement. * * *'

Part of a written statement admittedly signed by plaintiff while in bed at his home at the request of an investigator investigating the accident for defendant Wagnon is as follows: 'Joe Wagnon is a personal friend of mine and I was a regular rider in his automobile every afternoon. Every pay day I would give him 50cents to help out with the gas and oil. This, however, was not a charge but more or less a donation.'

Defendant Wagnon on direct examination:

'Q. * * * You heard Mr. Patterson testify that he had an agreement with you to pay you for his transportation from Brookley Field to Mobile. Is that so or not so? A. There was no agreement made before he started riding, no, sir.

'Q. Do you recall when you first started riding Mr. Patterson? A. Not to the very day I don't.

'Q. Had you been riding him for any length of time before anything was said about any money at all? A. About two weeks.

'Q. And then, state to this jury here, as well as you can recall, just what the conversation was at that time. A. Well, we had started to the car that afternoon, and he gave me 50 cents. We had both been riding with a fellow named Bodo Hilson. So he gave me 50 cents, and said: Here's 50 cents. That's what I been paying Bodo and I'm going to pay it to you. He said: I feel like I ought to give it to you.

'Q. And what did you state to him? A. I told him it was perfectly all right with me, but as far as charging him was concerned, I did'nt expect nothing out of anybody--that I don't believe in asking anybody for anything for riding with me.

'Q. Did you feel you were under any obligation to him to ride him to work because of that money he handed you? A. I didn't feel that way, no, sir.

'Q. Were you operating your...