Opinion
7 Div. 611.
April 8, 1926.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Culli, Hunt Culli, of Gadsden, for appellant.
The averment that plaintiff was a passenger in defendant's automobile was sufficient to show a duty on the part of defendant not to negligently injure her. Perkins v. Galloway, 69 So. 875, 194 Ala. 265, L.R.A. 1916E, 1190; Id., 73 So. 956, 198 Ala. 658; Armstrong v. Montgomery St. R. Co., 26 So. 349, 123 Ala. 233; B. R., L. P. Co. v. Adams, 40 So. 385, 146 Ala. 267, 119 Am. St. Rep. 27. A count averring that plaintiff, by invitation of defendant, was riding in an automobile of defendant as his guest, and that said automobile was being driven by defendant's servant or agent, acting within the line and scope of her duty as such, shows a duty on the part of defendant not to negligently injure plaintiff. McGeever v. O'Byrne, 82 So. 508, 203 Ala. 266; Perkins v. Galloway, supra. If defendant instructed his agent to invite plaintiff to accompany her as a guest, a relation was thereby established, out of which arose a duty by defendant to plaintiff. Barker v. Dairymen's Milk Prod. Co., 88 So. 588, 205 Ala. 470. As to liability of the owner of an automobile to a guest, whether the automobile be driven by the owner or his agent, see Powers v. Williamson, 66 So. 585, 189 Ala. 600.
O. R. Hood, of Gadsden, for appellee.
Plaintiff is not entitled to a review of rulings anterior in time to the ruling causing the nonsuit. Engle v. Patterson, 52 So. 397, 167 Ala. 117. Counsel argues that the counts were subject to the demurrer and cite Powers v. Williamson, 66 So. 585, 189 Ala. 600; Barker v. Dairymen's Prod. Co., 88 So. 588, 205 Ala. 470; Crider v. Yolande Coal Co., 89 So. 285, 206 Ala. 71.
In B. R. L. P. Co. v. Adams, 40 So. 385, 146 Ala. 267, 272, 119 Am. St. Rep. 27, it was held that a count showing that the plaintiff was a passenger in the defendant's car, operated by the defendant at the time of the injury, though not a common carrier, sufficiently showed the relationship and the resulting duty not to negligently injure the plaintiff while so transporting him. To the same effect is Lawrence v. Kaul Lumber Co., 55 So. 111, 171 Ala. 300, 305. On the authority of those cases, count 2 of the complaint in this case must be held not subject to the demurrer, and the demurrer was erroneously sustained.
In this state, as probably everywhere else, it is settled that the operator or driver of a motorcar, or other vehicle, is bound to exercise reasonable care to avoid injuring any one whom he is transporting as his guest. Perkins v. Galloway. 69 So. 875, 194 Ala. 265, L.R.A. 1916E, 1190; McGeever v. O'Byrne, 82 So. 508, 203 Ala. 266; Powell v. Berry, 89 S.E. 753, 145 Ga. 696, L.R.A. 1917A, 306; 13 Neg. Comp. Cases, 858, and notes.
And, on the principle of respondeat superior, the owner of the car must be held liable to one riding therein as his guest, whether such owner is driving the car in person, or by his authorized agent or servant, with or without the presence of the owner in the car. See Powers v. Williamson, 66 So. 585, 189 Ala. 600. But, as held in that case, one who is riding as a guest in the car, though the car is being driven by the owner's agent or servant duly authorized thereto, may be the guest of the agent or servant, and not of the owner; and, if the driver, though acting duly for his master in the operation of the car, was not acting for him in accepting and transporting the guest, the master and owner could not be held liable. Powers v. Williamson, supra. Hence the fact that the driver of the car, though operating it as the servant of the owner, invites a passenger to become his (the driver's) guest, does not as to such guest make the driver the servant of the owner in respect to the safe transportation of the guest.
Applying these principles to the case before us, we hold that counts 3, 5, and 6 state a cause of action within those principles, and are not subject to any of the grounds of demurrer assigned. As to those counts, the demurrer was erroneously sustained.
Count 4 differs from count 6 in but one particular — it does not categorically aver that the plaintiff was the guest of the defendant. But, under the principles declared in Lawrence v. Kaul Lumber Co., 55 So. 111, 171 Ala. 300, 305, 306, the invitation of the defendant, and its acceptance by the plaintiff, made her a passenger, imposing upon the defendant the resulting duty and liability for its breach. It results that the demurrer to this count was erroneously sustained.
Counsel for appellee makes the point that, under the showings of the record — referring especially to the periods of time that elapsed between the successive judgments of the trial court on the demurrers as the new counts 3 and 4, and later 5 and 6, were successively filed — it appears that the nonsuit was the result of sustaining the demurrers to the fifth and sixth counts, merely, and that therefore the prior judgments on the demurrers to the counts of the original complaint, and to added counts 3 and 4, cannot be properly reviewed on this appeal.
We think that this contention is without merit. The mere lapse of time between the several rulings and judgments complained of was not material. As held in Russell v. Garrett, 93 So. 711, 208 Ala. 92, the effect of successive rulings at different times on demurrers to successively filed pleas is cumulative in compelling the nonsuit, and each of the rulings may be assigned for error. As to the cause of the nonsuit the judgment entry is conclusive, and is apt and sufficient in this case. Long v. Holley, 47 So. 655, 157 Ala. 514; Russell v. Garrett, supra.
For the errors noted, the judgment will be reversed, and the cause remanded, for further proceedings in accordance with this opinion.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.