Wurtzburger v. Oglesby, 6 Div. 449.

• Decision Date: 10 April 1930
• Docket Number: 6 Div. 449.
• Citation: 131 So. 9,222 Ala. 151
• Parties: WURTZBURGER v. OGLESBY.
• Court: Alabama Supreme Court

131 So. 9

222 Ala. 151

WURTZBURGER v. OGLESBY.

6 Div. 449.

Supreme Court of Alabama

April 10, 1930

Rehearing Granted Oct. 30, 1930.

Further Rehearing Denied Dec. 11, 1930.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for personal injuries by Eloise Oglesby against Clarence Wurtzburger. From a judgment for plaintiff defendant appeals.

Affirmed on rehearing.

Nesbit & Sadler, of Birmingham, for appellant.

Benners Burr, McKamy & Forman, of Birmingham, for appellee.

BOULDIN J

Plaintiff desiring to go from Birmingham to Montgomery, called a friend to know if he was going to Montgomery. This friend informed her he was not, but that he had a friend, the defendant, who was going in his car. This mutual friend called defendant, a stranger to plaintiff, asking on her behalf, that she might go with defendant, who politely agreed. Accordingly, at the appointed place, defendant took her aboard the car and proceeded on the trip. While en route, both parties riding in the car, operated by defendant's chauffeur, a collision occurred resulting in alleged personal injuries for which plaintiff sues.

The inquiry is: Was plaintiff a passenger in the car to whom defendant owed a duty of ordinary care, or was her relation such that defendant owed no duty save not to wantonly or willfully injure, the same duty owed to every person, even a trespasser?

The liability of the owner and operator of an automobile for private purposes to one whom he undertakes to furnish gratuitous transportation therein was first considered by this court in Perkins v. Galloway, 194 Ala. 265, 69 So. 875, 876, L. R. A. 1916E, 1190.

Quoting with approval an English case, saying: "No doubt, a person who undertakes to provide for the conveyance of another is responsible, although he does so gratuitously," this court, speaking by Mr. Justice Thomas, continues:

"This rule has been extended by many cases to one not a common carrier, who voluntarily undertakes to transport another, and makes such voluntary carrier responsible for injury to the person transported resulting from negligence, whether the service was for a compensation or was gratuitous," citing many cases.

Defining the measure of duty, it was said:

"The express or implied duty of the owner and driver to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of that method of travel. He must exercise the care and diligence which a man of reasonable prudence, engaged in like business, would exercise for his own protection and the protection of his family and property-a care which must be reasonably commensurate with the nature and hazards attending this particular mode of travel. Reaves v. Maybank, 193 Ala. 614, 69 So. 137. Failing in this duty, he will be liable to the occupant or guest in the car for injuries the result of such carelessness or lack of diligence."

The complaint in the Perkins-Galloway Case charged the plaintiff was a passenger. So, the court proceeded to define "passenger" as applied to the evidence in that case wherein plaintiff was an invited guest. On this point, we again quote:

"The rule in this state defining who are passengers and the liability of the carrier thereto is thus stated by Mr. Justice Somerville, in Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 So. 111: 'But, if the carrier is not a common carrier of passengers, and has not expressly contracted to carry in the particular case, a person entering upon its train and taking passage thereon might be, under various circumstances, either a passenger, a licensee, or a trespasser. If his presence is without the knowledge and consent of anyone in charge of the train, he is but a trespasser. If on the invitation, or with the knowledge and acquiescence, of such an agent, not authorized nor shared in by his principal-the carrier itself or its alter ego-such person would be but a licensee. *** If on the invitation, express or implied, of the carrier or its alter ego manager, or of any authorized agent, such person would be a passenger. *** In the last instance he could recover of the carrier for injuries suffered while a passenger and proximately caused by the simple negligence of the carrier; while in either of the other instances he could recover under a proper complaint only for the wanton negligence or willful wrong, *** including its failure to exercise due care to avert injury after the danger was apparent McCauley v. Tenn. Co., 93 Ala. 356, 9 So. 611."'

Note that the several alternatives thus quoted from the Kaul Case are expressly limited to cases in which the owner "has not expressly contracted to carry in the particular case." The Kaul Case had already dealt with the case of an express undertaking for gratuitous carriage, by one not a common carrier, in the following language:

"It is also well settled that the person transported is none the less a passenger, because he pays nothing for his carriage, or because he rides for his own convenience solely, by the courtesy of, and absolutely without profit to, the carrier. 5 A. & E. Enc. Law, 507; 1 Am. & Eng. Ann. Cas. 451, note; Indianapolis Traction Co. v. Klentschy, 167 Ind. 598, 79 N.E. 908, 10 Ann. Cas. 869; Harvey v. Deep River Logging Co. (1907) 49 Or. 583, 90 P. 501, 12 L. R. A. (N. S.) 131. The essential requirement seems to be only that the passenger is accepted as such-that is, for transportation by the carrier; the trust and confidence thereby induced, on considerations of public policy, imposing upon the carrier the duty to reasonably safeguard, and not negligently injure, the person so carried."

In both the Perkins and Kaul Cases an invited guest, express or implied, is declared a passenger. The invitation, when accepted, establishes a relation wherein the carrier undertakes to transport, takes into his keeping the person of the other, the equivalent of an express agreement so to do.

These cases further declare that the owner and operator of a vehicle owes no duty to an occupant who is a mere licensee, except not to injure him wantonly or wilfully, nor after discovery of his peril.

When is the occupant a mere licensee under these cases?

"If on the invitation, or with the knowledge and acquiescence, of such an agent [one in charge of the vehicle], not authorized nor shared in by his principal-the carrier itself, or its alter ego-such person would be but a licensee." Lawrence v. Kaul Lumber Co., 171 Ala. 306, 55 So. 111, 113. In such case the occupant is an utter stranger to the owner; he enters the car to make use of another's property, a moving vehicle, for his own convenience, without any undertaking by the owner to furnish gratuitous transportation. Accordingly, pleas alleging the occupant "voluntarily, of his own free will and accord, without invitation from the defendant, *** boarded the car on which he was riding," were held prima facie sufficient.

This in no way negatives other parts of the opinion dealing with an express undertaking to transport; neither does it declare that one boarding the car pursuant to prearrangement, by which the car is made available by the owner for that purpose, is not in the car by invitation in such sort as constitutes him a passenger.

The licensee doctrine was stated and applied in McCauley v. Tenn. Coal, Iron & Railroad Company, 93 Ala. 356, 9 So. 611, 612.

In that case defendant was not a common carrier, but running a work train. There was a rule, known to plaintiff's intestate that no one, other than company employees, should ride upon the train without permission of defendant's superintendent. Plaintiff's intestate, not such employee, with others, was in the habit of boarding and riding upon the train. Some evidence tended to show...