(148 N.E.) overturned and the plaintiffs injured thereby. The court held that the act of the defendant in acceding to the request of the plaintiff's possessed none of the elements of a contract, and involved no elements of an invitation so as to bring the case within the rule of law applicable to a passenger upon a railway train or a hired bus, or to cases of express or implied invitation; that the legal status of the plaintiffs was that of licensees, to whom the only legal duty imposed on the defendant was to refrain from doing any act wantonly or willfully injurious.. And in MacKenzie v. Oakley, 91 N. J. Law, 66, 108 A. 771, where the owner of an automobile invited another to occupy a seat in his automobile, it was held that the duty of the owner was to exercise due care, and that under the facts the rule of res ipsa loquitur was applicable. taken a human life into his custody, although without reward, he is discharged from liability if he bestows in the preservation of that life no more than that degree of care which even the most inattentive and thoughtless take of their lessen the sanctity of human life. I can find no own concerns? Such a doctrine would greatly case in any book which supports it. The defendant was under a higher obligation of care towards the wayfarers on the public streets, towards whom he stood in no relation of confidence, as he did towards the plaintiff. The correct principle applicable to the case is this, that if a man gratuitously undertakes to do a tion or profession is such as to imply skill, an thing to the best of his skill, when his situaomission of that skill is imputed to him as gross negligence.' * * This must, however, be said with the qualification that the word 'gross,' in the sense, is not used as expressing the antithesis of a certain defined degree of care. It is either used in the sense of 'culpable' or 'ac In Grabau v. Pudwill, 45 N. D. 423, 178 N. tionable,' or else it is a mere epithet." W. 124, the court said: "The plaintiff received no invitation to ride upon the car. Yet the defendants knew all the time that he was upon the running board of the car. He was in plain sight. He was a guest of the defendants, by sufferance. It is true that he was a gratuitous guest, but this alone is not sufficient to relieve defendants from at least the exercise of ordinary care for his safety. In fact, we can see but little difference between defendants' duty toward him as a gratuitous guest, after they acquired full knowledge of his presence on the running board, than if they had, in the first instance, invited him as their guest." The Supreme Court of West Virginia, referring to that case, said: In Rappaport v. Stockdale (Minn.) 199 N. W. 513, it was held that one who had engaged an automobile van to move his goods, which he had assisted in loading, was not a trespasser while riding in the van to the place where the goods were, to be unloaded. The plaintiff not being a trespasser, the court said: "Such being the argument and concession, it is not necessary to consider whether any nice distinction should be made as to plaintiff being an invitee or mere licensee. In either event the right of recovery would have to be predicated in this case upon active negligence of the driver in the operation of the van after knowledge that plaintiff was riding thereon. Some courts hold "In that case the evidence impliedly showed that as to one riding even as an invitee there is invitation to ride by the owner, from whom the no duty of the driver or owner except to reduty arose to observe ordinary care not to in-frain from wanton or gross negligence. Massajure the invitee: even a trespasser is entitled to this protection." Christie v. Mitchell, 93 W. Va. 200, 116 S. E. 715, 23 N. C. C. A. 306. The statement that "even a trespasser is entitled to this protection" may not be absolutely correct as an abstract statement of the law. But the court doubtless had in mind a case of a helpless trespasser, where his danger was known to the defendant, as was the fact in the North Dakota case and in Davidson v. Pittsburg, etc., R. Co., 41 W. Va. 407, 23 S. E. 593, which was cited in support of the statement. In Siegrist v. Arnot, 10 Mo. App. 197, where the defendant's servant had knowingly received the plaintiff into a carriage driven by him, and where the jury had been instructed there could be no recovery in the absence of gross negligence, the cause was reversed because of the giving of this instruction, the court saying: "In the first place, there are no degrees of negligence known to the law where the subject of the bailment is a human life. Any negligence under such circumstances is culpable, and may well be deemed gross. * * Can it be said for a moment that, where one has voluntarily letti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, may be said to be the leading case of the courts so holding. However, the trend of the decisions in most of the states is to the effect that towards a person invited to ride in a private vehicle, though held a licensee, the driver of ing any negligent acts by which the danger of such vehicle owes the duty to refrain from doriding upon the conveyance is increased or a new danger created. In other words, he must drive with ordinary care." And referring to Mazey v. Loveland, 133 Minn. 210, 158 N. W. 44, L. R. A. 1916F, 279, which related to an invitee upon real estate, the court said such cases were not in point. [3, 4] It seems to us that the only sensible and humane rule is that an owner and driver of an automobile owes a guest at sufferance the duty of using reasonable care so as not to injure him. The rule as to trespassers and licensees upon real estate, with all its niceties and distinctions, is not to be applied to one riding in an automobile at the invitation of, or with the knowledge and tacit consent of, the owner and operator of the automobile. A trespasser and licensee going up son transported resulting from negligence, whether the service was for compensation or was gratuitous. (2) The duty of the owner of an automobile to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of the method of travel, but he must exercise the care and diligence which a man of reasonable prudence engaged in like business would exercise for his own protection and the protection of his family and property. On the second appeal, Galloway v. Perkins, supra, the rule as stated on the former appeal was reaffirmed; the court saying: "It does seem to be a harsh or hard rule which makes the carrier or host liable to the passenger or guest as for injury or death, in the absence of gross negligence or wantonness, especially when the passenger or guest is treated by the carrier or host, just as the latter himself is treated, and when both are injured by the same accident, as in this case. If this be so, the reply is: The law is so written, and cannot and should not be changed to meet hard cases; such instability would make shipwreck of the law." of the driver or owner of the machine creates * ty, he will be liable to the occupant in the car for injuries which are the result of such carelessness or lack of diligence." The rule announced is followed and approved in Hemington v. Hemington, supra. In Pigeon v. Lane, supra, it was held that as to the licensee the owner of the vehicle could be held liable for his "active negligence" which would include his negligent acts by which the danger was increased, or a new danger created, while the plaintiff was riding under such license. In Dickerson v. Connecticut Co., 98 Conn. 87, 118 A. 518, where a guest was injured while riding in an automobile, the defendant insisted that "active negligence" was the test of his liability. Pigeon v. Lane was explained; the court saying the term "active negligence" meant no more than want of ordinary care. And, after calling attention to the fact that it had been held that a gratuitous carrier of goods, like a gratuitous bailee of goods, was not liable to the owner of the A few jurisdictions have held that as begoods, in the absence of gross negligence, it tween an invitor and invitee in case of grawas held that the owner and driver of an au- tuitous transportation the driver of the vetomobile who undertakes to transport anoth-hicle must be guilty of gross negligence beer gratuitously is liable for injuries to such person, notwithstanding the rule as to the carriage of goods gratuitously by one not a common carrier. Referring to the evidence in that case the court said: fore he can be held liable for an accident. See Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, 18 N. C. C. A. 690. But in jurisdictions like Indiana, where there are no degrees of negligence, the doctrine of gross negligence is not applicable. "It was not necessary to a recovery that defendant himself should have expressly invited intestate to ride in the car. The deceased was There are also a few cases holding that a clearly not a trespasser, and was expressly in-person riding in an automobile for his own vited by one of the parties in the automobile, accommodation, and gratuitously, cannot and his presence in the car was known and acceded to by the defendant. The duty of defend-hold the driver liable, unless the latter is ant not to injure the deceased was therefore the same as if he had expressly invited deceased to ride with him. * * Under all the evidence there can be no reasonable doubt that deceased was a passenger in the automobile, and that the defendant owed him the duty which he owed any other passenger therein, and this whether or not he was the defendant's expressly invited guest." (Our italics.) To the same effect see McGeever v. O'Byrne, supra. This rule is stated in Huddy on Automobiles (5th Ed.) § 678, as follows: guilty of a wanton or intentional wrong. See Crider v. Yolande Coal, etc., Co., 206 Ala. 71, 89 So. 285, where the court, in speaking of one who was permitted to ride in a motor truck as an accommodation, and gratuitously, said: sumed all the risks of carriage except such as "He was at best a mere licensee, and asmight result from wanton or intentional wrong or a failure to exercise due care to avert injury after his danger became apparent." And in Lutvin v. Dopkus, 94 N. J. Law, 64, 108 A. 862 (two cases), the parties to the "When the occupant of an automobile is in-actions were members of a social organizajured through the operation of the machine, and land. it is shown that the driver was negligent and tion, which held a celebration at Staten Isthe occupant was not guilty of contributory The defendant, residing at Staten negligence, it is clear that the latter can main- Island, and 'being the owner of an automotain an action against the driver and recover bile, was solicited by the plaintiffs to take compensation for injuries. The fact that the them to the picnic grounds and return in his occupant was a guest or gratuitous passenger | automobile. On the return trip the car was (148 N.E.) overturned and the plaintiffs injured thereby. The court held that the act of the defendant in acceding to the request of the plaintiff's possessed none of the elements of a contract, and involved no elements of an invitation so as to bring the case within the rule of law applicable to a passenger upon a railway train or a hired bus, or to cases of express or implied invitation; that the legal status of the plaintiffs was that of licensees, to whom the only legal duty imposed on the defendant was to refrain from doing any act wantonly or willfully injurious.. And in MacKenzie v. Oakley, 94 N. J. Law, 66, 108 A. 771, where the owner of an automobile invited another to occupy a seat in his automobile, it was held that the duty of the owner was to exercise due care, and that under the facts the rule of res ipsa loquitur was applicable. In Grabau v. Pudwill, 45 N. D. 423, 178 N. W. 124, the court said: "The plaintiff received no invitation to ride upon the car. Yet the defendants knew all the time that he was upon the running board of the car. He was in plain sight. He was a guest of the defendants, by sufferance. It is true that he was a gratuitous guest, but this alone is not sufficient to relieve defendants from at least the exercise of ordinary care for his safety. In fact, we can see but little difference between defendants' duty toward him as a gratuitous guest, after they acquired full knowledge of his presence on the running board, than if they had, in the first instance, invited him as their guest." The Supreme Court of West Virginia, referring to that case, said: taken a human life into his custody, although without reward, he is discharged from liability if he bestows in the preservation of that life no more than that degree of care which even the most inattentive and thoughtless take of their own concerns? Such a doctrine would greatly lessen the sanctity of human life. I can find no case in any book which supports it. The defendant was under a higher obligation of care towards the wayfarers on the public streets, towards whom he stood in no relation of confidence, as he did towards the plaintiff. The correct principle applicable to the case is this, that if a man gratuitously undertakes to do a tion or profession is such as to imply skill, an thing to the best of his skill, when his situaomission of that skill is imputed to him as gross negligence.' * This must, however, be said with the qualification that the word 'gross,' in the sense, is not used as expressing the antithesis of a certain defined degree of care. It is either used in the sense of 'culpable' or 'actionable,' or else it is a mere epithet." * In Rappaport v. Stockdale (Minn.) 199 N. W. 513, it was held that one who had engaged an automobile van to move his goods, which he had assisted in loading, was not a trespasser while riding in the van to the place where the goods were, to be unloaded. The plaintiff not being a trespasser, the court said: "Such being the argument and concession, it is not necessary to consider whether any nice distinction should be made as to plaintiff being an invitee or mere licensee. In either event the right of recovery would have to be predicated in this case upon active negligence of the driver in the operation of the van after knowledge that plaintiff was riding thereon. Some courts hold that as to one riding even as an invitee there is no duty of the driver or owner except to re "In that case the evidence impliedly showed invitation to ride by the owner, from whom the duty arose to observe ordinary care not to in-frain from wanton or gross negligence. Massajure the invitee: even a trespasser is entitled to this protection." Christie v. Mitchell, 93 W. Va. 200, 116 S. E. 715, 23 N. C. C. A. 306. The statement that "even a trespasser is entitled to this protection" may not be absolutely correct as an abstract statement of the law. But the court doubtless had in mind a case of a helpless trespasser, where his danger was known to the defendant, as was the fact in the North Dakota case and in Davidson v. Pittsburg, etc., R. Co., 41 W. Va. 407, 23 S. E. 593, which was cited in support of the statement. In Siegrist v. Arnot, 10 Mo. App. 197, where the defendant's servant had knowingly received the plaintiff into a carriage driven by him, and where the jury had been instructed there could be no recovery in the absence of gross negligence, the cause was reversed because of the giving of this instruction, the court saying: "In the first place, there are no degrees of negligence known to the law where the subject of the bailment is a human life. Any negligence under such circumstances is culpable, and may well be deemed gross. * Can it be said for a moment that, where one has voluntarily letti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 191SC, 264, Ann. Cas. 1918B, 1088, may be said to be the leading case of the courts so holding. However, the trend of the decisions in most of the states is to the effect that towards a person invited to ride in a private vehicle, though held a licensee, the driver of ing any negligent acts by which the danger of such vehicle owes the duty to refrain from doriding upon the conveyance is increased or a new danger created. In other words, he must drive with ordinary care." And referring to Mazey v. Loveland, 133 Minn. 210, 158 N. W. 44, L. R. A. 1916F, 279, which related to an invitee upon real estate, the court said such cases were not in point. [3, 4] It seems to us that the only sensible and humane rule is that an owner and driver of an automobile owes a guest at sufferance the duty of using reasonable care so as not to injure him. The rule as to trespassers and licensees upon real estate, with all its niceties and distinctions, is not to be applied to one riding in an automobile at the invitation of, or with the knowledge and tacit consent of, the owner and operator of the automobile. A trespasser and licensee going up covered in ample time to be careless, or reckless, to use due care for his own safety, and that in the exercise of such care it was his duty, when his protests were not being heeded, to leave the car. This he failed to do, though he had repeated opportunities, and even returned to the car at least two times when he was out of it. The facts are before us, admitted and uncontradicted, and from them we should hold that appellant was guilty of contributory negligence as a matter of law. Certainly, from the facts in evidence as above set out, the jury reached a right result, and, when it has done so, the rule that erroneous instructions will not be a cause for reversal, if the verdict is right upon the evidence, is too well established to require citation of authorities. The neighborly kindness of owners of automobiles in inviting as their guests to ride with them those who are less fortunate is a matter of common commendatory remark. But no driver of an automobile, however careful he may intend to be always handles his car in the best the safest way, and, if ungrateful guests are to be encouraged by the courts to hale those who have tried to be kind to them into court to answer before a jury for accidents which may or may not be the result of some act of negligence, owners of cars may well choose with care those upon whom they will bestow such hospitalities. When a jury under circumstances such as in this case finds that such a guest has no right of recovery, there should be much hesitation on the part of the court to set aside the verdict. Is I view the facts in this case, the conduct of appellant was not so reprehensible as to Justify settling, at his expense, a doubtful proposition of law, if it can be avoided, and I think it can. FIRST NAT. BANK OF MT. VERNON v. AMERICAN TRUST & SAVINGS BANK et al. (No. 12314.) new trial, after statement of adverse conclusions of law, defendant appeals. Affirmed. Wm. Espenschied, of Mt. Vernon, for appellant. Walton M. Wheeler, of Evansville, Zimbree, of Princeton, and Jas. T. Walker and merman & Barker, of Mt. Vernon, L. C. EmHenry B. Walker, both of Evansville, for appellees. ENLOE, J. Appellee, American Trust & Savings Bank, as plaintiff, filed its complaint to foreclose a mortgage on certain real estate. The individual appellees herein, the makers of the notes involved and who also had executed the mortgage sought to be foreclosed, were made defendants, as was also the appellant herein, as being the holder of certain judgment liens on a portion of said lands covered by said mortgage, which liens were junior to and inferior to the said mortgage lien. The issues being settled, the cause was submitted to the court for trial, with a request that the court make a special finding of the facts and state its conclusions of law thereon. This was done and resulted in a stating of conclusions of law at variance with appellant's contention. There was a motion for a new trial, which heing overruled, this appeal follows. The only error assigned is the action of the court in overruling said motion. The appellant in its brief has stated its contention herein as follows: "The appellant contends that by finding of fact No. 14 the cross-complainants, Fred E. Nolte et al., are stopped from setting up their suretyship on the notes, and that since such cross-complainants, Fred E. Nolte et al., were estopped from setting up their suretyship, therefore the court's conclusion of law No. 2 is wrong, in that the trial court holds that said cross-complainants were 'entitled to a decree in this cause requiring the lands owned solely by the defendant Mary A. B. Nolte, as herein above found, shall be sold and exhausted before any of the lands of either or any of the cross-complainants shall be offered for sale under decree in this cause.' And further that (Appellate Court of Indiana, Division No. 1. the trial court's conclusion of law No. 3 is June 4, 1925.) Appeal and error ~719(8)—Errors as to trial court's conclusions of law held not presented for review. Errors as to trial court's conclusions of law held not presented for review, where they were not assigned as à cause for reversal in Supreme Court. wrong in this, that 'cross-complainants are not estopped from setting up suretyship,' and further that the decree of the trial court is wrong in directing that the land of Mary A. B. Nolte be sold first before those of the cross-complainants.". The entire contention of the appellant centers upon the conclusions of law stated_by the trial court. Error in conclusions of law Appeal from Circuit Court, Gibson County; is not assigned as a cause for reversal herein, Arthur F. Briggs, Judge. Suit by the American Trust & Savings Bank and others against the First National Bank of Mt. Vernon. From a denial of a and the questions, therefore, which appellant seeks to present do not arise upon this record. No question is presented, and the judgment must therefore be and is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) petition be "dismissed for want of jurisdic BERTRAM v. BICKNELL COAL & MINING tion." It will be observed that the Board found, not that appellant's disability had ceased, (Appellate Court of Indiana, Division No. 2. but that he had signed a receipt in which he June 5, 1925.) had so stated. Such receipt was not conclu- The order is reversed, with instruction to reinstate appellant's application, and to make such further finding of facts as is warranted by the evidence, and to render an award accordingly. JOHNSTON et al. v. FRANKLIN KIRK CO. et al. (No. 12084.) June 4, 1925.) 1. Contracts 127 (2)-Cannot oust jurisdiction of courts in case of disagreement between parties. Parties to contract cannot bind themselves so as to oust jurisdiction of courts in case of disagreement between them, especially where disagreement does not exist at time of contract. 2. Contracts 137(1) NICHOLS, J. Appellant filed a petition with the Industrial Board asking that appellee be required to pay compensation to (Appellate Court of Indiana, Division No. 1. appellant under a compensation agreement entered into by and between appellant and appellee. After hearing the evidence, the Industrial Board, by a majority of its members, found that, November 26, 1920, appellant, while in the employment of appellee at an average weekly wage of $24, received a personal injury by an accident which arose out of and in the course of his employment, of which appellee had notice and furnished medical attention; that on December 14, 1920, appellant and appellee entered into a compensation agreement, under the terms of which appellee agreed to pay appellant compensation at the rate of $13.20 per week during temporary total disability not exceeding the period fixed by law, beginning on November 30, 1920; that said agreement was Clause in contracts with automobile dealapproved by the Industrial Board; that uners that, in case of disagreement among them, der the terms of said agreement, compensa- distributor's decision should be final, held void tion was paid up to and including February as ousting jurisdiction of courts. 7, 1921; that on February 8, 1921, appellant Not necessarily invalidated by illegal clause or part. Illegal and void clause or part of contract does not necessarily invalidate entire contract. 3. Contracts 127 (2)-Clause of contracts, making distributor's decision final in case of disagreement among automobile dealers, held void. Contracts requiring automobile dealers selling in other dealers' territories to pay latter percentage of list price held not against public policy nor in restraint of trade. signed form 28 of the Industrial Board, 4. Contracts 116(6) dealers Contracts, requiring automobile selling in other dealers' territory to pay latter 10 per cent. of list price of cars so sold, held not against public policy nor in restraint For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-12 |