Orr v. Boockholdt , 10 Ala. App. 331 ( 1913 )

THOMAS, J.

The case of the plaintiff (appellee here) is fully stated in count 3 of the complaint, which the Reporter will set out. Demurrers to this count Avere overruled, the action of the court in doing which is made the basis of the first assignment of error.

One criticism urged against the count is that it fails to show or allege that the defendants were common carriers; but we think this immaterial. The distinction between a public or common carrier of passengers and a special or private carrier of the same is that it is the duty of the former to receive all who apply for passage, so long as there is room and no legal excuse for refusing, while such duty does not rest upon the latter. —5 Am. & Eng. Ency. Law, 480, 481; Angell on Carriers, § 524. This difference is not material here, since the action is not predicated on a refusal to carry, but the negligence of defendants after they had contracted for a reward to carry.

The law, in the absence of some limitation found in the contract or arising by implication from the situation of the parties, imposed upon them, whether they were private or public carriers, the duty of using due and proper care, commensurate with the dangers of the particular mode of conveyance used to effect the safe carriage of their passengers, and holds them responsible, as it does common carriers, for the .negligence of their servants to whom they have intrusted this duty — negligence being an absence or want of the care which the law requires. 5 Am. & Eng. Ency. Law, 586, 558, 553; So. Ry. Co. v. Crowder, 135 Ala. 428, 33 South. 335.

The complaint, we think, might well have counted upon the breach of this general duty to use due and proper care to carry safely, without specifying the particular act of diligence which the defendants should have employed in the performance of that duty (Leach v. Bush, 57 Ala. 155; Tenn. Coal, Iron & R. R. Co. v. Smith, 171 Ala. 259, 55 South. 170; Va-Car. Chem. Co. v. Mayson, 7 Ala. App. 588, 62 South. 253) ; and if the complaint had so declared, then upon proof that the vehicle in which plaintiff was riding Avas upset and plaintiff was injured, it. would have been incumbent upon defendants to prove that the accident was not due to any negligence on their part or that of their servants.— Payne v. Halstead, 44 Ill. App 97; Saltonstall v. Stockton, Taney’s Dec. 11, Fed. Cas. No. 12,271; Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115; L. & N. R. R. Co. v. Jones, 83 Ala. 381, 3 South. 902; Ga. Pacific R. R. Co. v. Love, 91 Ala. 433, 8 South. 714, 24 Am. St. Rep. 927.

Here, however, the complaint declares upon the particular duty of defendants to exercise reasonable care to select and furnish a skillful and careful driver, which is a mere incident of the general duty to use due and proper care to carry safely. — 5 Am. & Eng. Ency. Law, 533; Peck v. Neil, 3 McLean, 22, 26, Fed. Cas. No. 10,892. A breach of this particular duty is shown, in that it is averred in effect that the defendants did not furnish a skillful and careful driver, but a negligent and unskillful one, as a result of whose negligence the injuries are alleged to have occurred. The criticism of defendants is that the count fails to show that the injury complained of was the proximate consequence of the breach by defendants of the duty declared on, to wit, to exercise reasonable care in furnishing a careful and skillful servant, but, on the contrary, shows that the injuries complained of were the proximate consequence of the negligence of the servant, which is a breach of the general duty to use due and proper care to. carry safely. We cannot well conceive how any causal, connection could be shown between the injuries complained of and the negligence of defendants in furnishing a careless and unskillful servant, which is declared on, without showing that the injuries resulted from the negligence of the servant so furnished, while acting within the line and scope of his employment. — Payne v. Halstead, 44 Ill. App. 97; Horne v. Meakin, 115 Mass. 326; Benner Co. v. Busson, 58 Ill. App. 17.

Another criticism of the count is that it fails to show or allege the relation of passenger and carrier between the plaintiff and defendants. A passenger is a person-conveyed for hire from one place to another, and the relation of carrier and passenger is, therefore, usually dependent upon the existence of a contract of carriage of some sort, since it is the existence of such a contract which distinguishes a passenger from a licensee, a trespasser’, or an employee of the carrier, etc. — 5 Am. & Eng. Ency. Law, 487. It is not necessary to such a relation, however, that this contract of carriage be between the passenger and the carrier. It exists in every case in which the carrier receives and agrees to transport another not in its employment, whether this be by contract between the carrier and such person or by contract between the carrier and some other person. As instances of this, mail agents and express agents, Avhom a carrier is employed by another to carry, are held to be passengers to whom the carrier is under duty to use the proper degree of care to carry safely. — Gulf, etc., R. R. Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345; Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 587; Yoemans v. Contra Costa Steam Nav. Co., 44 Cal. 71; Blair v. Erie R. Co., 66 N. Y. 313, 23 Am. Dec. 55; Penn Co. v. Woodworth, 26 Ohio St. 585; Jennings v. Grand Trunk R. Co., 15 Ont. App. 477. Likewise it has been held that the relation of carrier and passenger exists between the owner of a vehicle who furnishes the driver and a person who is riding in it at the invitation of the person who hired it and to the knowledge and with the assent of the driver, so that the carrier is liable for injuries resulting to such person from the negligence of the driver.— Payne v. Halstead, 44 Ill. App. 17; Horne v. Meakin, 115 Mass, 326. See, also, 20 Am. & Eng. Ency. Law, p. 178, and cases cited in note 5.

Here, as will be observed from reading the count, one Mr. Fries, whose wife had died, hired from defendants carriages, with drivers in charge furnished by defendants, to convey the party in attendance upon the funeral of his wife from Birmingham to a cemetery at some distance, where the remains were to be interred. In this party was the plaintiff, who at the invitation of the daughter of Mr. Fries, took passage with others of the party in one of these carriages, and while en route the horses ran away, through the alleged negligence of the defendants’ driver, whence the injuries complained of. The facts alleged show that the defendants owed the plaintiff and all others of that funeral party — who by the express or implied invitation of the hirer took passage in one of those carriages engaged for the purpose, alleged to have been known to defendants, of transporting them to the cemetery — the duty of using proper care to carry them safely.. This duty resulted, not, of course, from a contract between defendants and such persons, but from a contract between defendants and Mr. Fries, whereby the defendants engaged for a reward to do the service, thereby bringing themselves into a relation, from which the duty flowed, with each of the parties at that funeral who might be invited to a seat in one of those carriages. As an incident of this general duty, they owed each of them a particular duty, which is declared on here, as shown, to use reasonable care in the selection and furnishing of a careful and skillful driver. — 5 Am. & Eng. Ency. Law, 533; Peck v. Neil, 3 McLean, 22-26, Fed. Cas. No. 10,892. We do not think the count subject to any of the demurrers aimed at it. — Payne v. Halstead, 44 Ill. 97.

We are of ojfinion, however, that the count was not. proved, and that the court erred in not giving the general affirmative charge requested by defendants, and this is because the plaintiff failed to show even prima facie that her injuries were the result of the negligence declared on of defendants in failing to furnish a careful and skillful driver. It is not claimed by plaintiff that there was any evidence whatever even tending to show this fact, except the one act of negligence on the part of the driver at the time of and which resulted in the accident complained of. Our Supreme Court have held that:

“Negligence such as unfits a person for service, or such as renders it negligent in a master to retain him in the employment, must be habitual, rather than occasional, or of such a character as to render it imprudent to retain him in the service. A single exceptional act will not prove a person incapable or negligent — First Nat. Bank v. Chandler, 144 Ala. 308, 39 South. 822, and cases there cited.

The undisputed evidence for defendants was that the driver had been in their employment and service as a driver continuously for over a year, and had never had an accident that they ever heard of before the one here complained of, and no complaints, before this, had ever been made that he was not careful and skillful, and that he appeared to be a careful and competent driver. We find nothing in the case, therefore, to warrant, but much to rebut, the inference that the defendants were negligent in furnishing this driver.

Of course, as hereinbefore said, the plaintiff could have recovered for the negligence of the servant, which was in law the negligence of the defendants, if the accident happened as a result'thereof (Payne v. Halstead, 44 Ill. App. 97), provided the complaint had been framed to that end; but she is not permitted to count on a specific duty and its breach, and recover by proving the breach of another duty. Probata and allegata must correspond.

The judgment is reversed, and the cause remanded.

Reversed and remanded.