| Ala. | 1915

Generating Comments...

ANDERSON, C. J.—

(1) Count 3 of the complaint sufficiently charged willful or wanton misconduct upon tbe part of the defendant’s agents or servants. — B. R., L. & P. Co. v. Barrett, 179 Ala. 274, 60 South. 262; Barbour v. Shebor, 177 Ala. 307, 58 South. 276, and cases there cited. Of course, the agents or servants must be conscious of tbe fact that their acts or omissions will probably produce injury, in order to be guilty of willful or wanton misconduct; but tbe general averment of willfulness or wantonness imputes to them sucb consciousness. It is true, also, that this is an essential averment, when tbe complaint sets out, or attempts to set out, the acts — • tbe quo modo — wbicb constitute the willful or wanton misconduct; but where tbe said conduct is charged in general terms, as in count 3 of tbe complaint, it need not charge sucb consciousness, etc. The authorities cited and relied upon by appellant’s counsel deal with the essential ingredients of willfulness and wantonness, but do not question tbe sufficiency of a general charge of same as made in tbe count under consideration. The trial court did not err in overruling the defendant’s demurrer to this count.

*144(2, 3) The doctrine is well settled in this and most of 'fife other states, as'well as by the federal courts, that the ’hontrib'iito'ry negligence of oné'in charge,'or coritrol of, a train, car, or .other vehicle, cannot be visited upon a ■person who is a passenger therein, whether for reward •dr not, ’unless the person so riding has charge or control ■ of-■ the*¡vehicle', or-over the person driving or operating-same: — L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184; North Ala. Co. v. Thomas, 164 Ala. 191, 51 South. 418; Elyton Co. v. Mingea, 89 Ala. 521, 7 South. 666. The complaint avers that the plaintiff was riding in the car with which the defendant’s train collided, as a passenger, and that said motor car was driven by one Tingley. The defendant’s special pleas do' not charge ■that the plaintiff owned or controlled the automobile, •or that he had authority - over or control of the driver, Tingley, and the trial court properly sustained the plaintiff’s demurrer thereto, as they sought to place upon the plaintiff responsibility for the negligence of Tingley- 1:

(4) It is true that these rulings do not conform to section 34 of the act of 1911 (page 634) known as the Automobile Act, and which said section is as follows: “The contributory negligence of the person operating or driving any motor vehicle in this state shall be imputed to every occupant of said motor vehicle at the time of such- negligence in actions brought by such occupant •Or his personal representatives for the recovery of damages'for death or personal injury whether the relation of principal and agent exists between such person operating or driving such motor vehicle and such occupant ■ or not, provided that the provisions of this section shall ' not apply to passengers paying fare and riding in a motor vehicle regularly used for public- hire.”

The trial court evidently ignored this statute in the trial of this cause, upon the theory that the same was *145unconstitutional. Counsel for appellee now suggests and argues the grounds upon which the said quoted provision should he stricken down as being repugnant to the Constitution, both of the state and of the United States. We may concede that the act is not violative of section 45 of the Constitution of Alabama, upon the idea that it does not deal with two separate and distinct subjects, and that the one general subject is clearly expressed in the title; that is, we may concede that the fixing of a liability upon occupants of a motor vehicle is cognate and germane to the general subject of regulating motor vehicles upon the highways of the state, and that the act in question can be differentiated from the one dealt with in the case of Sheffield Co. v. Pool, 169 Ala. 420, 53 South. 1027; also that so much of the title relating to the fixing of liability for persons riding therein is not so fatally deceptive and misleading as to not render section 34 consistent therewith, upon the theory that the subtitle fixing a liability upon occupants and section 34 changes the law of contributory negli-gence by fixing a burden upon the occupants for the negligence of the driver or operator. The general title may have sufficed for the incorporation into the act of section 34, without adding thereto the Subtitle providing for the fixing of a liability upon occupants; still this subtitle cannot be deemed so deceptive, when compared with section 34, as to render said section invalid, as being inconsistent with and not germane to the subtitle; but we are convinced that section 34 should be stricken down as being repugnant both to onr state and federal Constitutions. It is an unwarranted and unjust discrimination between persons of the same class; that is, it discriminates against persons riding in motor vehicles, because it does not reach those riding in any other kind of vehicles under similar terms and conditions.

*146It may be that the motor vehicle, because of its mechanism and capacity for speed, as well as it rather recent appearance and general use, is considered more dangerous than other vehicles in common use before it became such a general instrument of’use and travel — as was the case when the coal oil lamp succeeded the tallow candle; yet it is a vehicle of most common use, and is recognized as having the right to the use of our highways in common with all the other modes of travel, possessing the same general rights and subject to the same general rules as to the duties and liabilities owing to the public, and the occupants of same should enjoy the same legal protection accorded to persons riding or traveling in other vehicles. We do not mean to hold that the Legislature cannot enjoin upon motor vehicle operatives certain duties and restrictions not placed upon other vehicles of an inherently different nature and character, for the protection of the public. But the right to do this does not authorize the penalizing of people who ride in same, by depriving them of a legal right enjoyed by persons riding in any other kind of vehicle, and such a discrimination cannot be justified upon the basis of a reasonable classification. Section 34 not only discriminates against persons riding in motor vehicles in favor of those riding in all other vehicles under similar conditions, but it discriminates between those who ride in motor vehicles for hire. In other words, if a person rides in a motor vehicle which is regularly used for hire, he is not responsible for the negligence of the driver or operator; yet if he rides in one for hire he is responsible, unless said vehicle is regularly operated for hire. The section denies an equal .protection of the law to all persons similarly situated, and is an unwarranted discrimination.. — Cooley’s Constitutional Limitations, 391; South *147& North Ala. R. Co. v. Morris, 65 Ala. 193; Smith v. L. & N. R. R. Co., 75 Ala. 449.

(5) Of course, this constitutional guaranty does not forbid the Legislature from making a reasonable classification in the operation of our laws; but such a classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed, and classification cannot be arbitrarily made without any such substantial basis. Arbitrary selection, it had been said, cannot be justified by calling it classification. —Gulf R. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666; Cotting v. K. C. Stock Yards, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92; Sou. Ry. Co. v. Greene, 216 U. S. 400, 30 Sup. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247.

(6) We think that all of the defendant’s special pleas were subject to the demurrer interposed thereto, and a detailed discussion of same can serve no good purpose; but, as counsel for appellant urges plea 8 as not being subject to the ground of demurrer, attacking it for pretermitting proximate cause, and cites the Saxon Case, in 179 Ala. 136, 59 South. 584, we will say that, whether this omission affected the plea or not, it was subject to other grounds of the plaintiff’s demurrer. The plea does not deny that Tingley was in control of and was driving the automobile as charged in the complaint, nor does it charge that the plaintiff had control of the same, or that he had control of or authority over Tingley; non constat, while charging that the plaintiff allowed the automobile to stop on the defendant’s track, it does not charge that he had any right or authority to prevent the stopping of same.

The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur.