Storey v. Corkren

On Application for Rehearing.

PER CURIAM.

It is not intended by using the words “contract of hire,” in this opinion, or by employing words of like import, to place the service rendered in the category of that rendered by a common carrier, but only to say that the service was in the nature of that rendered by a private carrier, but not necessarily including all the intendments, and contractual obligations of such a carrier. It was a private arrangement that could be terminated at any time by either of the parties without contractual liability to answer in damages.

As stated in Armistead v. Lenkeit, 230 Ala. 155, 160 So. 257(4), we hold, on principle, if the transaction was not a joint venture, that the defendant owed the plaintiff the duty of ordinary care, that care which persons of common prudence usually exercise under like conditions. When. Armistead v. Lenkeit, supra, was decided, it. was the degree of care due a gratuitous passenger under our law then in force. Wurtzburger v. Oglesby, 222 Ala. 151, 131 So. 9(2). We think the relation in the instant case imposed no higher duty than, ordinary care. The basis of this liability in either case is the obligation of one person, who has undertaken to carry another,, whose person is committed to his keeping,, as here, not to negligently injure such person.

Opinion extended and application for rehearing overruled.

LIVINGSTON, C. J., and LAWSON,. GOODWYN, MERRILL, COLEMAN and. HARWOOD, JJ., concur.