Appellant as plaintiff in trial court has sued defendant Funeral Home, a Texas corporation, for damages growing out of personal injuries suffered by him while riding in defendant’s ambulance. The said vehicle of defendant, at the same time, was transporting a sick person- (Miss Coble) from the Medical Arts Building to St. Paul’s Hospital and on the way became involved in a collision with another car. At close of testimony adduced by plaintiff to a jury, defendant interposed a motion for peremptory instruction, which, upon hearing, was sustained and judgment rendered that plaintiff take nothing. The appeal has followed in due course.
First to be noted are findings of fact and conclusions of law made and filed by the court at instance of appellant; a procedure appropriate only to nonjury trials, Rule 296, Texas Rules of Civil Procedure. In this, a case going off on peremptory instruction, we are duty-bound to consider appellant’s contention that issuable facts exist for jury determination
in light of the record,
without reference to these findings. Farr v. Kirby Lumber Corp., Tex.Civ.App.,
In summary, plaintiff, in amended original petition, alleges: That on July 23, 1952 Miss Bernice Coble was a patient at Sam-uell Clinic and on orders of her physician was being transferred to St. Paul’s Hospital, and although bedridden, her case was not of an emergency nature; plaintiff upon request of Miss Coble consenting to accompany her on such trip; that “defendant maintains and operates a fleet of ambulances or other vehicles -which it makes available to the public for hire to trans *457 port said bedridden" patients and their attendants from one place to another,” one of its ambulances responding to the call; being hired to transport both plaintiff and Miss Coble to the hospital and undertaking to do so; that defendant was a common carrier as a matter of business and for compensation; on the trip plaintiff taking a seat in the ambulance reserved for passengers, in no way contributing to the collision which followed at Bryan and Pearl Streets. Numerous particulars of negligence were alleged; for example, failures as regards lookout and warning signals; • also excessive speed, driving as an emergency vehicle in violation of Dallas Traffic Code or under circumstances where a reasonably prudent person would not have done so, etc. Damages sought were in amount of $8,058.25, for injuries allegedly serious and from which he still suffers.
Defendant in answer pled that on the occasion in question it sent an ambulance to Medical Arts Building in response to a call for transportation of a patient (Miss Coble) to St. Paul’s Hospital; being informed' that her condition was serious and that time was of the essence; that present in said ambulance were a driver'and helper, trained and competent to drive said vehicle and care for patients carried therein, plaintiff entering same solely of his own volition, benefit and convenience; defendant receiving no compensation therefor and expecting none; that in consequence, the carriage of plaintiff was a mere gratuity, making him a guest within meaning of art. 6701b, Vernon’s Annotated Civil Statutes, and not entitled to recover on grounds of ordinary negligence as alleged; further that the movement of a third party automobile was the sole proximate cause of said collision and that the role of plaintiff on the occasion was that of a volunteer or licensee who had assumed the risk of riding in an ambulance engaged, as it was, on an emergency mission.
Material to the points advanced for reversal is the testimony of plaintiff, also of ■ Leonard Longley, Vice President, defendant company; in substance, as follows: (Oscar Cedziwoda) That on the" particular afternoon Miss- Coble had gone to the-Medical Arts Building, driving her own car, phoning plaintiff from Samuell Clinic" that she was being ordered to St. Paul’s Hospital,- requesting that he go along; that on arrival, Miss Coble was lying on ⅞ roll-away bed, appearing normal, without" pain; admitting on cross-examination, however, that her condition was later determined to be Serious; that she decided: to take an ambulance to the hospital- and requested him to call one, which he did through a nurse; that there was no rush to get Miss Coble to the hospital, the ambulance arriving some thirty minutes later, plaintiff introducing himself to defendant’s-employees in charge, telling them he was going to ride with her. That two small metal seats were located within" the ambu-. lance, alongside-the patient, one of which he occupied; that defendant’s vehicle commenced- traveling ■ at an excessive speed through heavy traffic, running a red light at Bryan and Pearl Streets and into a car going south.
Mr. Longley, Vice President, defendant corporation, testified in effect that they were in the business of transporting pa-, tients upon call from one section of Greater Dallas to another for a charge of $5 per patient; that a friend or relative was permitted to accompany the patient, charge being made for the latter only; such third person rendering no service to defendant, the ambulance having a driver and attendant for all assistance necessary; that the ■ vehicle was equipped with two seats for. this kind of accommodation, on numerous occasions carrying along a third party who desired to ride, billing the patient only for the trip; that the particular call was for' ambulance service to Miss Coble at - the Medical Arts Building for removal to hospital, defendant not knowing who, if any one, was to, accompany her.
The - following points are advanced as ■ grounds for reversal o-f cause: Error of the trial court (1) “in using the -Texas. Guest Statute, to defeat the plaintiff’s cause- ■ of action because the transaction involved" *458 here was obviously not one intended to be covered by this statute”; (2) “in holding that the statute applied to the plaintiff because the plaintiff clearly was not a guest under any interpretation of the Texas Guest Statute”; and (3) “in granting a directed verdict for defendant because the plaintiff was clearly an invitee of the defendant and not a mere licensee.” The trial court has properly held, argues appel-lee i in reply brief, (1) “that the operator of • an ambulance service is not a public carrier as that term is used in the Texas Guest Statute”; further, that the court correctly instructed a verdict for defendant, (2) “since appellant failed to plead and prove sufficient facts to establish that appellee was a -public carrier and that appellant’s alleged cause of action was not barred by the Texas Guest Statute”; (3) “since the appellant failed to plead and pro.ve sufficient facts to establish that there existed between him and the appellee the relationship of public carrier and passenger and that his alleged cause of action was not barred by the Texas Guest Statute”; (4) “since the uncontroverted evidence showed that appellant was a guest of appellee, as 'that term is used in the Teicas Guest Statute, and was not entitled to recover for ordinary negligence”; and (5) “since the ' uncontroverted evidence showed that appellant was a mere licensee.”
Article 6701b, V.A.C.S., generally known-as' the Texas Guest Statute, provides: “Section 1. No person transported over the public highways of this State by the ownér'or operator of a motor vehicle as his’ guest without payment for such transportation, shall have a cause of action for ’ damages against such owner or operator for injuries', death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. Sec. 2; This Act shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier, or by such owner or operator. Acts 1931, 42nd Leg., p. 379, ch. 225.” Here the law questions posed by the parties may be considerably narrowed: Appellant asserting that his ambulance ride was an integral part of a commercial transaction and hence not governed by Section 1 of the Act. And, if not so, that he was an invitee of defendant, a public carrier, under sec. 2 above, his injuries resulting from its failure to exercise ordinary care on the occasion in question. Defensive propositions naturally reflect a directly contrary view.
Clearly, plaintiff was a gratuitous rider in defendant’s ambulance on the described occasion within contemplation of the Texas Guest Law; the commercial aspect of the event relating only to the “patient” from whom payment was expected. In general course of testimony plaintiff had stated that it was for the benefit of Miss Coble that the' ambulance trip was initiated, he having no reason for going to the hospital other than to accompany her; simply announcing to defendant’s employees that he was taking passage, they answering “All right.” When an issue is raised in this respect, importance attaches to the plaintiff’s purpose in making the trip. Johnson v. Smither, Tex.Civ.App.,
It is argued that appellant, invited to make the trip by Miss Coble from whom defendant expected payment, the riding was a part of the commercial transaction rather than a gratuity. Like- contention
*459
was made in Rushing v. Mulhearn Funeral Home, La.App.,
Neither do we consider that the instant facts bring defendant within the exception of “public carrier,” art. 6701b, sec. 2; a term not defined in the statute but treated by both parties as synonymous with “common carrier”; the outlined ambulance service making of defendant no more than a special or private carrier. The distinction between a common or public carrier and a private carrier is drawn in 4
Blashfield Cyclopedia of Automobile Law and Practice, sec. 2141, page 7, and sec. 2141.5, page 11: “The criterion by which to determine whether one who furnishes motor transportation to other persons as a commercial proposition, or for a price, is a common carrier of passengers is whether he holds himself out to the public as engaged in the business of transporting persons for hire, and as ready to receive and transport all fit and suitable applicants for passage, to the extent of his facilities, who are ready to compensate him for such service. * * * Where one is not engaged in the transportation of persons as a regular and constant business or as a public employment, and does not hold himself, out as ready to carry all persons who may choose to employ him, but agrees, by way of special undertaking, to transport persons for hire, or even gratuitously, he is not a common carrier, but is a special or private carrier.” Such is the test applied in Texas. See Burnett v. Riter, Tex.Civ.App.,
“Q. You knew that you were going to get five dollars for that trip, didn’t you? A. No, sir, we did not; we don’t ever know whether we are ever going to collect for them, when it comes to that, sir.
“Q. Well, I mean you knew that you were going to bill her for it, didn’t you? A. Well, we can render a bill, yes, sir”; stating that his company was not in the taxicab business.
The status of an ambulance as a public carrier has not been passed on by Texas courts, and but rarely in other jurisdictions. Appellant relies, however, upon two cases in support of his points: First, Leete v. Griswold Post,
On the other hand, in Hollander v. Smith & Smith,
Obviously the provisions of sec. 2, 6701b, were intended to apply to those persons and concerns which had theretofore *461 been, and were for all other purposes, public carriers; and in absence of legislation on the subject, it is our conclusion that, at least under the circumstances here presented, defendant’s operation of an ambulance service cannot be characterized as that of a public carrier (*See Footnote).
Judgment of the trial court is affirmed.