Rush v. McDonnell , 214 Ala. 47 ( 1925 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

"(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.

On Rehearing.