1 Div. 345.
October 22, 1925. Rehearing Denied November 19, 1925.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Stevens, McCorvey, McLeod, Goode Turner, of Mobile, for appellant.
A father is liable for an injury sustained as the result of the negligent or willful operation of his automobile while its handling is intrusted by him to his minor son under the age of 16 years. Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508; Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L.R.A. 1916E, 1190; L. N. v. Abernathy, 197 Ala. 519, 73 So. 103; Acts 1911, pp. 643, 644.
Gaillard, Mahorner Arnold and Gregory L. Smith, all of Mobile, for appellees.
Section 22 of the Act of 1911 (page 643) is not applicable to a private automobile owner licensing another to operate the automobile for the pleasure of the licensee, but is only applicable to the owner of an automobile for hire. Venturini v. Carlin, 17 Ala. App. 478, 86 So. 156. Said section is manifestly designed for the protection of the public generally, and is not for the protection of guests of a minor driving for his own pleasure. Watts v. Montgomery Tr. Co., 175 Ala. 106, 57 So. 471; L. N. v. Murphree, 129 Ala. 432, 29 So. 592; C. of G. v. Sturgis, 149 Ala. 573, 43 So. 96; Reynolds v. Woodward Ir. Co., 199 Ala. 231, 74 So. 360; L. N. v. Sullivan, 138 Ala. 379, 35 So. 327. Mere violation of a statutory duty amounts to but simple negligence; to constitute willful or wanton misconduct there must be actual knowledge, or its equivalent, of the peril of the person injured, and conscious failure to act to avert injury. Smith v. C. of G., 165 Ala. 407, 51 So. 792. The relation, if any, between defendant and deceased, was that of licensee to his host. Crider v. Yolande C. C. Co., 206 Ala. 71, 89 So. 285; Lawrence v. Karl Lbr. Co., 171 Ala. 306, 55 So. 111.
"(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 Glennon McDonnell.
"(7) Because, at best, this defendant is only charged with simple negligence in allowing his son to operate said automobile."
In Parker v. Wilson, 179 Ala. 361, 370, 60 So. 150, 153, 43 L.R.A. (N.S.) 87, we said:
"Automobiles are not to be classed with such highly dangerous agencies as dynamite or savage animals. They are not dangerous per se. Prudently driven they are safer than the horse-drawn vehicle. But the special training needed for their operation, though simple and easily acquired, as well as the temptation to speed which they constantly present, should impose upon owners a special degree of care in the selection of experienced and judgmatic drivers for them. No doubt liability will arise where the owner intrusts a machine of such dangerous potentialities to the hands of an inexperienced or incompetent person, whether child or servant. In the case of a mere permissive use, the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner and the driver, negligence of the one in intrusting the machine to an incompetent driver, of the other in its operation."
This principle was specifically applied by us in the later case of Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A. 1917F, 380, where it was said, per Anderson, C. J.:
"While automobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of same, except upon the theory of the doctrine of respondeat superior, yet there is an exception if he intrusts it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality, and the incompetency is known to the owner when permitting the use of the vehicle."
See, also, Beville v. Taylor, 202 Ala. 305, 80 So. 370, where the principle was fully approved. Recent cases in point are Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A.L.R. 1156; Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128, fully annotated. See, also, Huddy on Automobiles (7th Ed.) 345, § 358.
Liability in such cases depends, on common-law principles, upon the ownership of the automobile, the incompetence of the bailee to whom its operation is intrusted to operate it properly and safely, the owner's timely knowledge of such incompetence, and injury to a third person resulting proximately from the incompetence of the bailee.
"Youth may be a controlling factor in determining competency, depending upon the character of the work to be done and the experience of the individual. * * * But incompetence is not confined to downright inability to perform the allotted service. It goes to reliability in all that is essential to make up a reasonably safe person, considering the nature of the work, and the general safety of those who are required to associate with such person in the general employment [or, as in this connection, those who will be in the line of danger from the operations with which the person is intrusted]." 18 R. C. L. 726, § 204.
"Incompetence" comprehends various kinds of unfitness, but as a term in pleading it is sufficiently definite for the imposition of the liability charged. Though in a sense it states a conclusion of fact — a collective fact, as it is called — the pleader is not required to charge all of its elements, nor any of its specific phases, and a complaint so charging is not, as to that, subject to any ground of demurrer. First National Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Penn. Coal Co. v. Bowen, 159 Ala. 165, 49 So. 305.
A distinction is sought to be drawn by defendant between an injury to a person who is in the automobile as a guest of the incompetent driver, and an injury to any outside person. We are unable to find any sound basis for such a distinction. The driver of an automobile owes the same duty to a guest riding in his car that he owes to a stranger on the highway, the duty to use due care not to do him an injury in the operation of the car. Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L.R.A. 1916E, 1190; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508. And, so far as proximate result is concerned, the one injury is as much to be anticipated, and is as directly related to the incompetent operation of the car, as is the other.
The case of Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A.L.R. 1156, declared the liability of a father who gave a motorcycle to a 15 year old boy, the boy being incompetent to drive it properly, who took a child to ride on it, and while so doing injured him.
Of course, in all such cases the question of contributory negligence may arise upon proper pleadings, when the injured guest was a person of discretion and accountable for his want of due care. Upon the considerations stated, we hold that the complaint stated a good cause of action on common-law principles, and was not subject to any of the grounds of demurrer interposed.
Section 22 of the Act of 1911 (Gen. Acts 1911, §§ 634, 643) provides:
"No person either the owner, chauffeur, or other authorized driver of any motor vehicle, shall operate any such vehicle upon the public highways of this state who is under the age of sixteen years, unless accompanied by an adult person and any person allowing any such vehicle to be operated by any person under the age of sixteen years unless accompanied by such adult shall be punished by a fine not exceeding one hundred ($100.00) dollars."
The effect of this statute is to render any person under 16 years of age conclusively incompetent to drive a motor vehicle, and to render any person who allows a minor under 16 to drive such vehicle guilty of negligence as a matter of law. Hopkins v. Droppers, supra; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471. It does not change the theory of liability, nor the rights of parties, but may simplify the allegations of the complaint, and supplies the necessary proof of the incompetence of the driver bailee, and of the negligence of the bailor. The complaint herein, by appropriate averment, states a case within the statute.
We have discussed the case upon the merits of count 3 of the complaint. Count 4 is very clearly not sufficient as a wanton count, and could not have been intended as such, since it charges but simple negligence as to the father defendant. As a count for simple negligence it is substantially like count 3, and is not subject to any of the grounds of demurrer assigned.
The trial court erred in sustaining the demurrers to either count, and the judgment will be reversed, and the cause remanded for further proceedings in accordance herewith.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
The principles of law declaratory of a carrier's duty to one who is on its train as a mere licensee (as in McCauley v. T. C. I. Co., 93 Ala. 356, 9 So. 611; Lawrence v. Kaul Lbr. Co., 171 Ala. 310, 55 So. 311; and Crider v. Yolande C. C. Co., 206 Ala. 71, 89 So. 285), and in analogous cases, are not applicable to a person riding in an automobile or other vehicle as the invited guest of the owner, or of any one who is driving it on his own account. In the cases above referred to, the injured plaintiff was not an invited guest of the defendant, and the defendant's liability was predicated wholly upon the negligence of an agent who, without his principal's consent, permitted the plaintiff to ride as an accommodation to him. The duty of due care not to injure an invited guest in the latter case is of universal recognition, so far as we are advised. Perkins v. Galloway, supra; McGeever v. O'Byrne, supra.
We are not confusing the liability of the driver of the car, or of his principal, for the negligent operation of the car, with the liability of the owner or custodian of the car for intrusting its operation to an incompetent driver. The two phases of liability are separate and distinct, and in the latter case the liability is not based upon the doctrine of respondeat superior. Yet the injurious conduct of the bailee, resulting from his incompetency as a driver, is a necessary factor to the liability of the owner or custodian, without which the wrongful bailment could not be said to be the proximate cause of the injury. Hence any consideration of the owner's liability must involve also a consideration of the conduct of the bailee and of his legal culpability. Parker v. Wilson, 179 Ala. 361, 370, 60 So. 150, 43 L.R.A. (N.S.) 87.
The suggestion that the Act of 1911, supra, cannot be applied to this case because it was not declared upon by the plaintiff in his complaint, is of course unsound. General domestic statutes, state and federal, are judicially known by the court, and are read into every pleading. Crawford v. Planters' etc., Bank, 6 Ala. 289; K. C., etc., R. Co. v. Flippo, 138 Ala. 487, 35 So. 457. There are no decisions to the contrary, though the rule is different when municipal ordinances are relied upon.
The chief contention made by counsel for appellee is that the provision in question (section 22 of the Act of 1911 [Acts 1911, p. 634, 643]) was not enacted for the benefit of persons injured while riding in the car with the minor. This was the crucial question in the case, and it was duly considered on the original hearing. Several new arguments, based upon the title and contexts of the act, are now advanced in support of that contention, which are deserving of notice and response.
1. The act, according to its caption, provides generally for "registration, licensing, identification and regulation of motor vehicles operated upon the public highways of this state"; and our attention is called to a succeeding clause declaratory of the purpose of "fixing liability for persons riding therein." The argument is that this purpose was expressed in section 34 of the act, which provided that "the contributory negligence of the person operating or driving any motor vehicle in this state shall be imputed to every occupant of said motor vehicle at the time of such negligence in actions brought by such occupant or his personal representatives for the recovery of damages for death or personal injury whether the relation of principal and agent exists between such person operating or driving such motor vehicle and such occupant or not"; and that this provision, though it has been nullified as unconstitutional (Birmingham-Tuscaloosa Ry. U. Co. v. Carpenter, 194 Ala. 141, 69 So. 626), is still useful and effective to show that it was not the legislative purpose to confer a right of action upon any person riding in an automobile for any injuries sustained by reason of a violation of any duty imposed by the act.
We do not think this provision can be accorded such a meaning. The titular provision for "fixing liability for persons riding therein" is certainly not referable to the provisions of section 34 for restricting such persons' right of recovery against others. The two things are entirely antithetical.
But, conceding for the argument that section 34 is related to the titular provision quoted, we can still find no merit in the contention. Section 34 is very clearly intended to deny any right of recovery in favor of those riding in the car in those cases where, by reason of his own contributory negligence, the driver of the car cannot recover; and the very words of the section show unmistakably that it is applicable, and can only be applicable, to an action against some third person for injurious conduct affecting the car and its occupants. The contributory negligence of the driver imports, ex vi termini, a prior or contemporaneous negligence on the part of a third person charged with liability. Section 34 then can have no influence upon the question here at issue, the liability of the owner or custodian of the car for injury proximately resulting to any person, in or out of the car, from the incompetence of the driver to whom its operation has been intrusted.
2. It is contended that, since the act makes no distinction between adults and infants who may be injured while riding in the car, then, if its terms by necessary implication exclude adults from the class to whom the owner is liable, they must be held to be inapplicable to all persons of either class; and the argument is that there is such an implied exclusion because the owner's liability is prevented if the infant driver is "accompanied by an adult person." Counsel's view of this is that this condition to nonliability is met by the presence of any adult person who may happen to be riding in the car.
This argument is specious but manifestly unsound. "To accompany," according to the New Standard Dictionary, means "to go with, or be associated with, as a companion, an attendant, or a retinue; escort or convoy; also, to go or be sent with as an incidental or concomitant." Here, "accompanied by an adult person" undoubtedly means attended by an adult person having and exercising supervision over the infant in respect to his operation of the car. Indeed, the plain purpose and policy of the act forbid any other construction of the word.
We do not, upon full consideration, find any sufficient reason for changing our conclusions as expressed on the original hearing, and the application for rehearing will therefore be overruled.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.