Opinion
6 Div. 320.
November 20, 1958.
Appeal from the Circuit Court, Jefferson County, C. F. Goodwyn, Jr., J.
Count A of the complaint is as follows:
Count "A":
"Plaintiff claims of the defendant the sum of Five Thousand Dollars ($5,000.00) damages, for this, that heretofore, on to wit: May 26, 1956, the plaintiff was a passenger in an automobile, then and there being operated by W. M. Gossett, on and along Ninth Street, otherwise known as Tuscaloosa Road, a public highway in the City of Bessemer, Alabama, near its intersection with Ninth Avenue, commonly known and referred to as Tuscaloosa Highway, and being that certain public highway that runs between Bessemer, Alabama, and Tuscaloosa, Alabama, designated as U.S. Highway No. 11; that at said time and for a long time prior thereto said U.S. Highway No. 11 was a main thoroughfare and the most heavily travelled highway through Bessemer, Alabama, and at the time and place aforesaid said highway was crossed or intersected by Ninth Street, otherwise known as Tuscaloosa Road, that at the time and place aforesaid the automobile in which the plaintiff was riding was struck with great force by a trailer truck then and there being operated on or along Ninth Avenue, U.S. Highway No. 11, and that plaintiff was thereby severely injured as follows:
"He suffered cerebral concussion, fracture of the right clavicle, fracture of right upper ribs, comminuted fracture of the right tibia and fibula, multiple contusions and abrasions, and lacerations of the left eyebrow area, and he suffered and continues to suffer great physical pain and mental anguish.
"Plaintiff further avers that he was in said automobile at said time and place as a guest passenger and that said automobile in which plaintiff was then and there riding was in a funeral procession, and that said funeral procession was under the charge of the defendant.
"Plaintiff further avers that on and for a long time prior to May 26, 1956, the defendant conducted a mortuary and funeral business in the City of Bessemer, Alabama, and plaintiff avers that on to wit: May 26, 1956, the defendant at its place of business at to wit: 1300 Fourth Avenue North, Bessemer, Alabama, and immediately following that portion of the funeral service which was conducted at defendant's said place of business, organized or directed or supervised the funeral procession composed of to wit: fifteen (15) automobiles, including the automobile in which plaintiff was a passenger; at said time and place defendant directed and supervised the spacing of said automobiles within said funeral procession, and the defendant further directed the operators of each of said automobiles to turn on the headlights of each of said automobiles, and the defendant directed the route of travel of said funeral procession from its said place of business to Cedar Hill Cemetery within the City of Bessemer, where said funeral service was to have been concluded. And plaintiff further avers that said route of travel was along Ninth Street, otherwise known as Tuscaloosa Road, where said street crosses or intersects with U.S. Highway No. 11; and said defendant at said time and for many years prior thereto knew that said Ninth Street and Ninth Avenue, in the City of Bessemer, was a dangerous intersection, and knew that traffic upon Ninth Avenue in the City of Bessemer, being the same public highway as U.S. Highway No. 11, was one of the most frequently travelled highways in the State of Alabama, and in the City of Bessemer, and knew that U.S. Highway No. 11 was a thoroughfare and was protected at the said intersection by a stop sign, and knew or should have known by the exercise of reasonable care, that many collisions had occurred at said intersection shortly prior to May 26, 1956 and knew that it was dangerous to direct a funeral procession on and along said Ninth Street at its intersection with said U.S. Highway No. 11; in the City of Bessemer, Alabama. That at said time and place said funeral procession was not protected by a police escort and that no method or means were used to warn traffic travelling upon U.S. Highway No. 11, of the presence of the funeral procession, or to otherwise protect said funeral procession from traffic travelling on or along said Ninth Avenue, which said funeral procession included the automobile in which plaintiff was an invited guest.
"Plaintiff further avers that the defendant having undertaken to direct the aforementioned funeral procession as aforesaid, negligently failed to provide safe passage to the plaintiff and other members in said funeral procession and did not provide an escort or other means of protection to the guests in said funeral procession and did not provide an escort or other means of protection to the guests in said funeral procession, including the plaintiff; and in entire disregard of its duty to furnish safe passage to the plaintiff, led said funeral procession on and along Ninth Street, a public highway in the City of Bessemer into and over the intersection of Ninth Avenue, U.S. Highway No. 11, a public highway in the City of Bessemer without warning the plaintiff of the danger of being struck by vehicles travelling on or along said Ninth Avenue and without making any effort to warn approaching vehicles travelling on or along Ninth Avenue of the presence of the funeral procession at said time and place in which plaintiff was a guest passenger.
"Plaintiff further avers that he received all of his said injuries and damages catalogued in the foregoing part of this complaint and as a proximate result of the negligence of the defendant in failing and neglecting to protect and safeguard said funeral procession in which plaintiff was riding as a passenger, as aforesaid."
The following are grounds of demurrer assigned to the complaint.
"1. For that it does not appear therefrom that the defendant owed to the plaintiff any duty on the occasion complained of.
"2. For that it does not appear therefrom that the defendant breached any duty owing to the plaintiff.
"6. For that it appears therefrom that the defendant had no power as such to furnish a police escort.
"12. For that it does not appear therefrom that the defendant was under any duty to the plaintiff to protect plaintiff from being struck by vehicles traveling upon Ninth Avenue (U.S. Highway 11).
"13. For that when construed against the pleader it appears that the defendant did not undertake to direct the automobile in which the plaintiff was riding across said Ninth Avenue nor to protect the same from the danger of being struck by other vehicles traveling upon said Ninth Avenue but left to the operator of said vehicle in which said plaintiff was riding the full control of the operation of his vehicle upon or across said highway.
"14. For that the averment thereof that the defendant undertook to direct the aforementioned funeral procession is but the unauthorized conclusion of the pleader, unsupported by a sufficient averment of facts to warrant the conclusion.
"16. For that the mere fact that the defendant led said funeral procession did not place upon it the duty to provide protection from vehicles upon that Ninth Avenue as the automobiles in said funeral procession crossed said Avenue.
"17. For that the averment thereof that the defendant negligently failed to provide safe passage to the plaintiff and other members in said funeral procession is but the unauthorized conclusion of the pleader, unsupported by a sufficient averment of facts to warrant the conclusion.
"18. For that the averment thereof that the defendant negligently failed to provide safe passage to the plaintiff and other members in said funeral procession and in an entire disregard of its duty to furnish safe passage to the plaintiff, led said funeral procession on and along Ninth Avenue and over the said Ninth Avenue is but the unauthorized, conclusion of the pleader, unsupported by a sufficient averments of facts to warrant the conclusion.
"19. For that the averment thereof that it was the duty of the defendant to furnish safe passage to the plaintiff over such said Avenue is but the unauthorized conclusion of the pleader, unsupported by a sufficient averment of facts to warrant the conclusion.
"20. For that the allegation that it was the duty of the defendant to furnish safe passage to the plaintiff on said occasion imposes a duty higher than that imposed by law.
"21. For that the plaintiff seeks to impose upon the defendant a duty higher than that imposed by law.
"26. For that there is no duty upon a funeral director to provide protection for vehicles in a funeral procession.
"27. For that the mere fact that a funeral director leads a funeral procession from the place of the funeral service to the cemetery does not impose upon such funeral director the duty to protect the vehicles in such funeral procession from other vehicles that may be met upon the streets traveled or crossed by the funeral procession in going to such place of burial."
Lipscomb, Brobston, Jones Brobston, W. E. Brobston, Bessemer, for appellant.
Visitors to funeral home for purpose of attending funeral are invitees, not licensees of the funeral director. Watts v. Rhodes, 325 Mass. 697, 91 N.E.2d 925; Savoy v. G. F. Poole Mortuary, La. App., 60 So.2d 108. The funeral director has the duty of furnishing safe transportation. Sack v. A. R. Nunn Son, 129 Ohio St. 128, 194 N.E. 1; Radel Co. v. Borches, 147 Ky. 506, 145 S.W. 155, 39 L.R.A., N.S., 227. There is a duty on an invitor to invitee to discover as well as avoid any danger which may threaten him through use of any agency under his control. Peregoy v. Western Md. Ry. Co., 202 Md. 203, 95 A.2d 867; Blackman v. Rowe, 96 N.H. 207, 72 A.2d 460; Geraghty v. Burr Oak Lanes, 5 Ill.2d 153, 125 N.E.2d 47. The termination of the relation of business visitor is not upon his leaving the premises of defendant, but as long as parties' mutual interest is subject matter of plaintiff's visit, plaintiff is still a visitor. Robillard v. Tillotson, 118 Vt. 294, 108 A.2d 524; Wakefield v. Levin, 118 Vt. 392, 110 A.2d 712; Wurtzburger v. Oglesby, 222 Ala. 151, 131 So. 9; Hutchison's Carriers, § 563; Weston v. National Mfrs. Stores Corp., 253 Ala. 503, 45 So.2d 459; Stratton v. Southern Ry. Co., 4 Cir., 190 F.2d 917, 27 A.L.R.2d 363. The ultimate test of existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. Connecticut Sav. Bank of New Haven v. First Nat. Bank Trust Co., 138 Conn. 298, 84 A.2d 267. Where person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such manner that those rightfully led to a course of conduct on the faith thereof shall not suffer loss or injury by reason of negligent failure properly to perform. Sult v. Scandrett, 119 Mont. 570, 178 P.2d 405. Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control and consent by the other so to act. 1 Restatement Law of Agency, §§ 1, 73; 2 Am.Jur., Agency, § 23. Contracts are to be implied when their terms are not so stated. The distinction is not one of legal effect but in the way in which mutual assent is manifested. 1 Williston's Contrs. (Rev.Ed.) 6, § 3.
Huey, Stone Patton, Bessemer, for appellee.
Traffic on public highways is governed by statute. Code 1940, Tit. 36, Chap. 1; Tit. 36, §§ 21, 48. Enactment of safety statute amounts to legislative declaration that injury from violation of statute is reasonably to be anticipated. 38 Am.Jur. 731, § 73; Butts v. Ward, 227 Wis. 387, 279 N.W. 6, 116 A.L.R. 1441. Common-law rule as to negligence does not obtain when legislature has by statute established the standard for care. Operator of automobile in funeral procession does not have right to enter intersection in violation of statute or ordinance. Sloss-Sheffield Steel Iron Co. v. Allred, 247 Ala. 499, 25 So.2d 179; Mobile Cab Baggage Co. v. Armstrong, 259 Ala. 1, 65 So.2d 192. A city cannot delegate its police powers. Harris v. Cope, 236 Ala. 415, 183 So. 407; 37 Am.Jur. 732, § 118. Undertaker in charge of funeral services is not insurer of safety of persons riding in automobiles in funeral procession, nor is he liable for injuries sustained by such persons resulting from collisions with automobiles operated by persons not in procession. Louisville N. R. Co. v. Mulder, 149 Ala. 676, 42 So. 742. Implied contract in fact exists only where there are circumstances which according to ordinary course of dealing and common understanding show a mutual intent to contract. 17 C.J.S. Contracts § 4, p. 318; Cowan v. Martin Huckaby, 246 Ala. 378, 20 So.2d 769; Waters v. American Cas. Co., 261 Ala. 252, 73 So.2d 524; 12 Am.Jur. 504, § 6.
Appellant, plaintiff below, appeals from a judgment of involuntary nonsuit after an adverse ruling of the court in sustaining demurrers of appellee, defendant below, to each count of the complaint, as amended. The amended complaint consisted of three counts, styled Counts One and Two and Count A. Count One is in negligence and Count Two is for the breach of an implied contract. Count A is substantially the same as Count One, and appellant asserts in brief that it is this count in which he places the greatest reliance. The reporter will set out Count A and grounds of demurrer 1, 2, 6, 12, 13, 14, 16-21, 26 and 27 in the report of the case.
Appellant states in brief that the gravamen of the complaint is the undertaking by the funeral director to lead a funeral procession in which plaintiff was a passenger, into a position of danger, without warning him, though the defendant knew in advance the danger to be faced. Appellee takes the position that the defendant owed no duty to the plaintiff in that the defendant had no control whatsoever over the operation of the automobile in which plaintiff was riding and had no right to direct how said automobile should be operated.
It is elementary that where there is no duty, there can be no negligence. City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160; Weston v. National Mfrs. Stores Corp., 253 Ala. 503, 45 So.2d 459; Hill v. Reaves, 224 Ala. 205, 139 So. 263; Bridgeport Water Co. v. Goodwin, 132 Ala. 533, 31 So. 490. And it is a well-established rule of common-law pleading in Alabama that, while negligence may be alleged in general terms, a complaint is not sufficient unless facts are averred which disclose a duty owed by the defendant to the injured party and a breach of such duty. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305; Alabama Utilities Co. v. Champion, 230 Ala. 263, 160 So. 346; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693; Ensley Ry. Co. v. Chewning, 93 Ala. 24, 9 So. 458. Another rule of pleading in Alabama is that, when considering the sufficiency of the allegations on demurrer, the court will assume that the pleader has stated his cause as favorably as possible, and the averments will not be aided by implications or intendments, but the pleading will be construed most strongly against him. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Rudder v. Trice, 236 Ala. 234, 182 So. 22; Hanby v. Campbell, 222 Ala. 420, 132 So. 893; 16 Ala.Dig., Pleading, 34(4).
Applying these rules of pleading to the complaint in the instant case, we must consider the facts to be that plaintiff was the last car in the fifteen-car funeral procession, and that there was a considerable distance between the automobile in which plaintiff was riding and the automobile next preceding him. And in the absence of averments to the contrary, it must be assumed in construing the pleadings that every car preceding the plaintiff did stop at the stop sign protecting the Tuscaloosa highway, for we must assume in the absence of an averments to the contrary, that those drivers obeyed the stop sign. It does not appear that the driver of the plaintiff's automobile turned his lights on or that he stopped for the stop sign. The control of traffic upon public highways is a legislative function and one to which the legislature has given considerable effort in assuming. Tit. 36, §§ 1-58, Code 1940. These laws and "rules of the road" obtain on all public highways in the State except that local authorities are authorized under Tit. 36, § 48, as amended, to " * * * place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and carry out the provisions of this chapter or local traffic ordinances or to regulate, warn, or guide traffic."
It logically follows that, in the absence of local regulations concerning the conduct and regulation of traffic upon public highways, the State law would prevail. Nowhere in any of the counts of the complaint in the instant case do we find any reference to any ordinance of the City of Bessemer regulating or controlling traffic at the intersection of Ninth Street and Tuscaloosa Highway. And under Tit. 36, § 21, the State Highway Department is authorized to erect stop signs at entrances to such highways as the Tuscaloosa highway from intersecting roads. In Count A of the complaint, it is averred that there is a stop sign on Ninth Avenue at the entrance into the Tuscaloosa highway. And, although it does not appear whether the stop sign was placed there by virtue of city ordinance or by the State Highway Department, it must be assumed that it was placed there pursuant to law. Harris v. Blythe, 222 Ala. 48, 130 So. 548. And, it is negligence per se for the driver of an automobile to fail to heed a stop sign before entering a highway. Harris v. Blythe, supra. Insofar as we can determine, there is no Alabama statute regulating the rights of automobiles in funeral processions, although there are city ordinances relating to funeral processions. Our court, in the case of Sloss-Sheffield Steel Iron Co. v. Allred, 247 Ala. 499, 25 So.2d 179, 180, had before it such a city ordinance. It appears from that case that the ordinance provided that the operator of an automobile should not drive through a funeral procession. Plaintiff's car was in a funeral procession and entered the intersection on a red light, and the defendant's truck, which had the green light, entered the intersection and collided with the plaintiff's automobile. The case was before the court on certiorari from the Court of Appeals, and the Court of Appeals had found that the driver of the defendant's truck neither knew nor was there anything to put him on notice that the plaintiff's car was in a funeral procession. This court held that if this were true, then the ordinance dealing with the driving through a funeral procession had no application. We said:
"It is true that violation of the city ordinance is per se negligence, but this does not necessarily constitute actionable negligence. 'Unless there is the breach of a duty owing, there is no actionable negligence, though there be negligence.' Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90, 92. See also Tennessee Coal, Iron R. Co. v. Smith, 171 Ala. 251, 55 So. 170; 45 C.J. p. 631.
" * * * If the car of plaintiff was in a funeral procession and this was reasonably apparent to the public, then it had the right to enter the intersection on the red light by virtue of Section 5920 of the City Code dealing with driving through a procession. Though not here involved, it is well to keep in mind that the mere fact that plaintiff's car was in a funeral procession did not relieve the driver of plaintiff's car of the general duty to operate the car with careful and prudent regard for the safety of others. Duke v. Gaines, 224 Ala. 519, 140 So. 600.
"So far as the defendant is concerned, the green light did not authorize the driver of its truck to enter the intersection and drive through the funeral procession if the driver either knew or from the surrounding facts and circumstances should have known that a funeral procession was passing through the intersection."
The foregoing states the law with regard to funeral processions where there is a city ordinance concerning their right of way through intersections. There is, however, no ordinance alleged in the instant case nor is it claimed that the procession had the right of way. We must determine the issue of duty considering all the relevant circumstances.
Is the funeral director in the instant case, considering all the construed facts, under a duty to the passenger in the automobile of a third party in the funeral procession; or, as Dean Prosser, in Prosser on Torts, 2d Ed. (1955) would state the issue in law: Is the defendant under any obligation for the benefit of the particular plaintiff? We do not believe that he is. Again, construing the facts as stated supra, in the absence of a city ordinance, and in the absence of any showing that defendant had any control over the operation of the vehicle in which plaintiff was riding, or any right to direct the driver how to operate the vehicle, we cannot say that there was any duty owed to appellant by appellee.
Appellant's first major contention is that mourners, who attend the wake of a deceased, occupy the relation of business invitees of the funeral director and that relation does not cease when the mourners leave the premises of the funeral home, but extends to the funeral procession, making the street in such instance, the "undertakers shop." The two cases cited are Watts v. Rhodes, 325 Mass. 697, 91 N.E.2d 925, and Savoy v. G. F. Poole Mortuary, La. App., 60 So.2d 108, both of which say that visitors to a funeral home, for the purpose of attending a wake of a relative or friend, are invitees and not licensees. In the Watts case, however, the court was considering the question only of whether the relation extended to a ramp to a side door of the funeral home, and in the Poole Mortuary case, the court considered a sidewalk. Both a ramp and a sidewalk, in close proximity to the funeral parlor, seem to us to be vastly different from an intersection with a public highway, and we cannot say that plaintiff was an invitee of defendant.
Appellant also relies on the Ohio case of Sack v. A. R. Nunn Son, 129 Ohio St. 128, 194 N.E. 1, wherein the plaintiff was in an automobile in the funeral procession and was injured when, on the return trip from the cemetery, the car struck a telephone pole. It is material in that case, however, that the undertaker was under contract to transport the funeral party to the cemetery and back, that he hired the cars from a third party placing them in the procession, and gave them written instructions of operation with regard to safety. Those, of course, are not the facts in our case.
We have examined the other cases cited by appellant in support of Counts One and A and find each of them so distinguishable from the instant case as not to be apt authority. It follows that some of the grounds of demurrer questioning the duty of the funeral director owing to the plaintiff were well taken as to Counts One and A and the trial court properly sustained the demurrer.
The only other question which is here for consideration is whether Count Two, the count alleging breach of an implied contract, is sufficient. Grounds of demurrer 7 and 8 raise the point that there is no contractual relation between the plaintiff and the defendant which would authorize a suit on the contract as sought in Count Two of the complaint.
An implied contract arises where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract. Such a contract must contain all the elements of an express contract, which rests on consent, and it is to every intent and purpose an agreement between the parties, and it cannot be found to exist unless a contract status is shown. 17 C.J.S. Contracts § 4, subd. b; Cowan v. Martin Huckaby, 246 Ala. 378, 20 So.2d 769. And the only difference in an implied contract and an expressed contract is in the mode of proof, the elements being the same. American Mutual Liability Ins. Co. v. McDiarmid, 211 Ala. 127, 99 So. 849. It follows that the complaint, in order to be held sufficient, must show the elements of a contract action. In the instant case, plaintiff claims in the first sentence of Count Two on "the breach of an implied contract" and no further reference is made to a contract, except in the last sentence of this count where it is alleged that plaintiff relied on the implied promises of the defendant to safely conduct the funeral procession. Although a contract may be pleaded by stating its substance and legal effect, or in haec verba, all material elements thereof should be stated with certainty to a common intent. Evans v. Town of Muscle Shoals, 235 Ala. 325, 179 So. 228, and cases there cited. It is apparent that appellant has failed in this respect in Count Two and, therefore, the two grounds of demurrer directed to the absence of a contractual relation were well taken.
The trial court properly sustained the demurrer to Counts One and Two and to Count A of the complaint, and the judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.