This is an appeal by defendants from a judgment for personal injuries received by plaintiff while riding in an automobile belonging to defendants who had loaned it to the plaintiff’s husband and which was being driven by him; but the accident was not charged in the complaint to have been due to his negligence or incompetency.
The suit was submitted to the jury on two counts, “B-l” and “C”, virtually the same in legal effect. So far as here material, count B-l alleges that plaintiff’s husband was at that time a purchaser or prospective purchaser of a used automobile from defendants; that defendants delivered to him a used automobile for use by him until they could deliver the automobile that was being purchased by him, and authorized him to drive said automobile on the public highways in the State until they could deliver to him said car being purchased; that the brakes or steering mechanism on the car thus loaned were in a defective condition; and while plaintiff was riding in said automobile as a passenger, the car being operated on a described highway in Alabama, the brakes or steering mechanism locked rendering it impossible to steer, thereby causing the car to run off the highway and to injure plaintiff as described in the complaint. It is averred that her injuries were caused as a proximate result of the negligence of defendants in negligently delivering said used automobile to plaintiff’s husband and authorizing him to operate and drive it over and along the public highways in the State with the brakes or steering mechanism of said automobile in a defective and dangerous condition.
The first assignment of error goes to the judgment overruling a demurrer to count B-l, supra. It was apparently patterned after the complaint upheld in the case of Al DeMent Chevrolet Co. v. Wilson,
Appellants contend that the same principle does not apply here because appellee is alleged to have been a passenger in the car and, therefore, subject to our guest statute. Section 95, Title 36, Code. That question is raised by a ground of the demurrer. The complaint does not allege that appellee (plaintiff) was riding as a guest in the car without the payment of compensation therefor. But if the statute here applies, the duty would be on defendants to plead it unless the complaint on its face shows its application. The complaint is based on a common law cause of action, of which the court has general jurisdiction. Aircraft Sales and Service, Inc., v. Gnatt,
When the court is of general jurisdiction, and the claim as alleged is one which is prima facie within that jurisdiction, it is not necessary to allege additional facts with respect to it in order to state a cause of action. But where the jurisdiction of the court over the cause of action is statutory and limited it is indispensable that the jurisdictional facts specified in the statute be alleged. 71 C.J.S., Pleading, § 76, page 191; Town of Flat Creek v. Alabama By-Products Corp.,
Since the circuit court is one of general jurisdiction, and the cause of action is not statutory, it is not necessary to allege facts which show that it is not one ■specially excepted by statute. It is the limitation which is statutory and not the creation of the cause of action. Section 95, Title 36, Code. For that reason the demurrer on that ground is not well taken— not to consider other grounds.
We are not willing to agree that the guest statute is controlling on defendants as to their measure of duty to a guest of their bailee riding in the car loaned to him. But we think it is a question of proximate cause and relates to principles generally applicable to a bailment of the car. We think it is important to consider the duty of defendants to Favors who was their bailee, although plaintiff was riding as a passenger with the bailee. It is said in 60 C.J.S., Motor Vehicles, § 430, page 1057,that “a gratuitous bailor of a motor vehicle may not furnish the bailee with an unsafe and unmanageable vehicle for a purpose which will endanger life and limb, and is liable for injuries, proximately resulting from the defect,
to third persons who are without fault themselves.
However, a gratuitous bailor owes to his bailee only the duty of giving warning or notice of those defects in the car, if any, of which he has knowledge and which in reasonable probability will imperil
those using it;
and an owner furnishing his car to another for the latter’s gratuitous use is not responsible for an injury to the user caused by a defective condition of which the owner did not know when he turned the car over to the user, where, in the exercise of reasonable judgment, he could not
have foreseen the probable injury to the user;
and the same holding has been made where the lender has no actual knowledge of the defect, even though he should have known of it”. Blom v. McNeal,
But where the bailment is not gratuitous, it is said, 60 C.J.S., Motor Vehicles, § 430, pages 1055, 1056: “The owner may also be responsible for resulting injuries where he could have discovered the defective condition of the motor vehicle by the exercise of reasonable care, although the owner is not responsible if a latent defect which causes an accident could not have been discovered by appropriate care and inspection of the automobile”. Mallory Steamship Co. v. Druhan,
We think the duty to inspect has the same application to one other than the bailee, who is likely to be subjected to the danger of the defects, as it has to the bailee. This includes those riding with him. 7 Blashfield on Automobile Law and Practice, section 4672 (notes 63 and 64), page 655; Rush v. McDonnell,
If an owner knows or should anticipate that the one to whom he lends or lets his car will use it on the streets and highways and carry others with him and thereby be subjected to the dangers incident to its defective condition he owes to those others the same duty of inspection that he owes to the bailee. Johnson v. Bullard, supra. The owner has no privity with such persons, and is not affected by the relationship existing between his bailee and them. They occupy the same relation to the bailor which the bailee occupies in respect to such duty if their presence should have been anticipated when the bailment was created. The guest of the bailee, if his presence was foreseeable, is by that circumstance clothed with the same protection, regardless of the relation between him and the bailee. There is no ground of demurrer that the complaint does not allege that defendants anticipated that their bailee would carry a passenger while driving the car.
It is also insisted that the complaint is defective in not alleging that defendants had knowledge of the defective condition of the car when they let Favors have it to use.. This is an essential issue in the case if the bailment is gratuitous. But if it is for hire or based upon other valuable consideration, there is a duty to make reasonable inspection as to its condition. A failure to do so may be negligence without actual knowledge of such defect or of facts sufficient to stimulate investigation. The complaint, makes no allegation as to the consideration, for the bailment, unless the consideration was the delivery of the car to Favors to be used until defendants could deliver the used automobile being purchased by him. It was held in a New Jersey case that those facts do not constitute a consideration so as to prevent the bailment from being gratuitous in the absence of a showing that the loan' of the car was a part of the consideration or inducement to the purchase. Nelson v. Fruehauf Trailer Co.,
The allegations of the complaint are consistent with the theory that the loan of the used car was an inducement to the purchase of the other one; but they are not specific to that effect.
The breach of a duty imposed by law is the gist of the action. That duty here is not to be negligent in respect to the alleged defective condition of the car. An allegation that defendants were negligent in that connection implies the existence of such knowledge or notice as the law requires, for otherwise there cannot be negligence. City of Birmingham v. Norwood,
The complaint, is not subject to demurrer for a failure to allege that defendants had notice of the defect when they delivered the car to Favors for use. We think strictness of pleading is not necessary in this connection, nor proof expressly referring to the use of the car as an inducement in and about the proposed sale of the other car. The circumstances are sufficient to support a finding to that effect. , ....
*268 Count C is similar to count B-l, except that it alleges that the car was delivered to Favors and he was authorized to operate and drive it over and along the public highways, but it does not allege that this was to continue until defendants could deliver a car being purchased, nor that Favors was at that time a purchaser or a prospective purchaser of another used car. If that count is properly construed to mean that Favors was a gratuitous bailee, and that defendants to be liable for a defect in the loaned car must have had notice of such defect to be chargeable with negligence in that respect, the allegation that defendants w.ere negligent supplies that element and the charge is not subject to the demurrer on that account.
Appellants cite Cunningham v. Bell,
Our case of Rush v. McDonnell,
As stated above, the rule applicable to the driver was changed by our guest statute, while the Ohio guest statute made no change. But we do not think our statute was intended to limit the duty of the owner who entrusts to an incompetent driver an automobile or to a competent driver a defective automobile. It was said in the Rush case, supra, that the liability depends upon common law principles. It is therefore subject to the common law principle of proximate causation. It is true that our *269 guest statute applies to the “owner, operator or person responsible for the operation of a motor vehicle”. We think that means to apply only to such person as may be responsible for the manner of its operation; that it does not apply to the ozvner unless he is operating the car in person or it is under his immediate control or is operated by his servant or agent duly authorized by him. When it is not being so operated the liability of the owner is governed by common law principles.
In the case of Theriault v. Pierce,
Appellants cited Koger v. Hollahan,
Most of the cases annotated in 131 A.L.R., supra, refer to statutes whose purpose was to fasten on the owner liability for the negligent operation of a car by one entrusted by the owner with its use, whether or not the driver was incompetent or the car defective. But the case of Hopkins v. Droppers,
On the Motion for a New Trial.
We agree with appellants that there may be a material difference in the nature of duty owing to one injured by the defendant while he is rightfully using the street and to one riding with the bailee. As we have said, if the bailment is gratuitous the duty to the bailee’s guest is different from what it is when there is a consideration or it is mutually beneficial to both bail- or and bailee. The person injured on the street is due the same degree of care as the bailee for a consideration. That is, that a reasonable degree of care should be used to inspect the car to see if a defect exists and if any to remedy it, and to use ordinary care and skill in doing so, although theretofore there has been no notice of any defect then existing. We think the jury could find that the loan of the car to Favors was made as a feature of the purchase of another car and that the rule so applicable is appropriate.
There was evidence that the car was inspected by appellants from one end to the other a short time before the accident. That the front wheel bearings were repacked, the brakelining checked and the brakes adjusted, besides other repair work not connected with the brakes or steering; that they then tested it and it checked out all right. But if it had been all right, the jury could have found that the brakes would not have locked or the steering disrupted, and that they did lock disrupting the steering mechanism. Whether the defendants were negligent in making the repairs was a question for the jury especially in view of the, fact that Favors testified that when he first started to drive the car the steering was tight and it continued to get worse.
We are of the opinion that the verdict of the jury was not contrary to the great weight of the evidence.
Assignment of error No. 4 relates to refused charge No. 22. The contention of appellants is that the complaint alleges that the car was in a dangerous and defec *270 tive condition when it was delivered to plaintiff’s husband, and that the jury should be so instructed; whereas the given charge No. 18 says the automobile was in a dangerous or defective condition. If that is an important difference, we observe that given charge No. 19 uses the conjunctive in accord with the complaint.
Assignment No. 5 relates to the refusal of charge No. 21, which is a sole proximate cause charge. When properly phrased, and when there is no wanton or subsequent negligence count, and its substance is not otherwise given to the jury, it is reversible error to refuse it. Seitz v. Heep,
Assignments 6 to 12, inclusive, are controlled by the principles we have discussed.
As to assignment of error No. lo, the court refused a motion by defendants to exclude a statement of the witness Hardegree made on cross examination with reference to certain marks on the road where the accident occurred, that “It was a mark of a locked wheel”. He was a highway patrolman of two years’ experience. He was on the highway about a mile away at the time. On direct examination he gave his version of the movements of the car as indicated by the tracks and location of the car, its direction with reference to the road, and tire marks which' he undertook to describe; and then on cross examination in answer to a question, “Will you describe what it was” (referring to marks on the road), said, “It was a mark of a locked wheel”. We think this was a shorthand rendering of facts and not objectionable. McPherson v. Martin,
Assignments of error 16 and 17 relate to-objections made to certain features of the argument of plaintiff’s counsel on the trial.. We think there was no reversible error-shown. It is not necessary to discuss them..
We have examined all the errors which were assigned and argued by counsel for appellants on appeal and do not find-reversible error in any of them.
The judgment of the lower court should; be affirmed.
The foregoing opinion was prepared by-FOSTER, Supernumerary Justice of this. Court, while serving on it at the request of' the Chief Justice under authority of Title-13, section 32, Code, and was adopted by-the Court as its opinion.
Affirmed.