ON PETITION FOR REHEARING. The question of controlling importance in this case is whether appellee owed appellant the duty of reasonable care. Appellee insists that appellant was a licensee or guest at sufferance, and that the only duty imposed upon him was not to intentionally or wantonly injure appellant. We cannot agree with this contention even if it be conceded appellant was a licensee or guest at sufferance. Appellee testified that he, his wife and daughter, and Summers got into his automobile at his house and drove from there to appellant's office, where appellant without any invitation got in the automobile. Under the facts as testified to by appellee an implied invitation on the part of appellee might well be inferred. We, however, are satisfied to base our decision upon the theory that appellant was not an invitee, but was a licensee or guest at sufferance as claimed by appellee. *Page 32
As shown in the main opinion, the courts of last resort in this country are not in accord with each other in dealing with this question. The most remarkable and striking view on the 5. subject is the one adopted by the Supreme Court of New Jersey in Lutvin v. Dopkus (1920), 94 N.J. Law. 64, 108 A. 862, and Rose v. Squires (1925), 101 N.J.L. 438,128 A. 880, where the court relied upon an analogy to earlier real property cases holding that a licensee can recover only for injuries sustained by reason of the willful acts of the landowner, and where the court based the distinction between a licensee and an invitee, not on the ground of the purpose of the injured person's presence in the automobile, but on the question as to whether such person was invited to ride or was merely permitted to do so. This theory has been repudiated and discarded by most courts. The view taken by the Supreme Court of New Jersey may be said to be peculiar to that state. The application of such theories to automobile cases is, in our judgment, unsound. Such cases as Thistlewaite v. Heck (1921), 75 Ind. App. 359, 128 N.E. 611, relating to the liability of land owners are not of controlling influence.
Appellee calls attention to Crider v. Yolande Coal CokeCompany (1921), 206 Ala. 71, 89 So. 285, where the plaintiff was riding in an automobile truck and where the court, after calling attention to the fact that plaintiff was not a "passenger," said: "He was at best a mere licensee, and assumed all the risks of carriage except such as might result from wanton or intentional wrong or a failure to exercise due care to avert injury after his danger became apparent." This case, it will be observed, recognizes that the driver of an automobile may under certain circumstances owe a mere licensee the duty of using due care not to injure him.
And in Petree v. Davison-Paxon-Stokes Co. (1923), 30 Ga. App. 490, 118 So. 697, after stating the rule as to *Page 33 trespassers, the court said: "In the case of a licensee, `there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license isat all times probable, some care must be taken to anticipate hispresence, and ordinary care and diligence must be used to preventinjuring him after his presence is known or reasonably should beanticipated. . . . The fundamental concept in this class of cases, as in that of trespassers, is of a liability only for wilful or wanton injury; but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done.' . . . `After the presence of the licensee is known, exactly the same acts of caution may be required of the proprietor to satisfy legal duty as would be necessary if the licensee were invited.'" To the same effect, seeSouthern Ry. Co. v. Chatman (1906), 124 Ga. 1026, 53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann. Cas. 675.
In Rowe Furnace Co. v. Patterson (1904), 120 Ga. 521, 48 S.E. 166, a casual visitor and lounger in a blacksmith shop was injured by the negligence of an employee of the defendant. The complaint was held not to state a cause of action because it failed to allege knowledge on the part of defendant or its employee of the presence of the plaintiff upon the premises. In this connection it was said: "Still, we think that, even as a trespasser, he would have the right to recover for any injuries sustained by him in consequence of the defendant having negligently and recklessly set in motion any destructive agency or force the natural tendency of which would be to imperil his life, if at the time of such negligent and reckless act the defendant knew, or ought to have known, that he was where he was likely to be injured thereby." *Page 34
In Cleveland, etc., Co. v. Stephenson (1894), 139 Ind. 641, 37 N.E. 720, cited by appellee, the jury, in answer to interrogatories, found the defendant did not know of the presence of the plaintiff at the time of the injury so that the statement that the company owed him no protection from its mere negligence, must be limited to the facts in that particular case, rather than as being applicable to all cases.
And this court in Terre Haute Traction Co. v. Sanders (1923), 80 Ind. App. 23, 136 N.E. 54, 56 referring to the duty of a landowner to a licensee said: "It may be said that a licensee takes the premises as he finds them with all their risks and dangers, and the owner of the premises owes him no duty of making any active effort to discover his presence, but, if the owner discovers his presence and sees him in a situation of peril, he may not do an affirmative act which might reasonably be expected to increase the peril." Again, on page 25, the court, continuing the discussion, said: "It may be conceded as contended for by appellant that a mere licensee goes upon the lands of the licensor at his own risk and takes the premises as he finds them, but the licensor has, however, no right to create a new danger while the license continues." See also Cleveland, etc., R., Co. v. Means (1915), 59 Ind. App. 383, 404, 104 N.E. 785, 108 N.E. 375.
Massachusetts, in dealing with this question, adopted the rule applicable to a gratuitous bailee of personal property, and held that a self-invited guest in an automobile could only recover in cases of gross negligence on the part of the driver. The Supreme Court of Pennsylvania, in attempting to apply the law of gratuitous bailment, reached a somewhat different conclusion, and, in Cody v. Venzie (1919), 263 Pa. 541, 107 A. 383, held that the care required of the driver of the automobile *Page 35 varied with the purpose for which the passenger or goods were transported. Massaletti v. Fitzroy (1917), 228 Mass. 487, 118 N.E. 168, L.P.A. 1918C, 264 Ann. Cas. 1918B, 1088 being cited with approval.
But the analogy between gratuitous bailment of personal property and the gratuitous transportation of a human being in an automobile does not hold. The degree of protection required 7. to be given property rights is not necessarily the same as that which must be given to human life. See 74 Pa. U.L. Rev. 86, where the authorities are reviewed and the rule announced by us in the instant case is said to be the correct one. See also 24 Mich. L. Rev. 200.
The rule announced by us requiring the driver of an automobile to exercise reasonable care has been adopted and followed in Minnesota, New York, North Dakota, and West Virginia. In addition to the authorities cited in the original opinion, see LaRose v.Shaugnessey Ice Co. (1921), 197 A.D. 821, 189 N.Y. Supp. 562.
In considering the question of contributory negligence on the part of appellant, it must be remembered that he was not required to establish his freedom from fault. Section 380 Burns 8, 9. 1926, Acts 1889, p. 58, makes contributory negligence a matter of defense in all actions for personal injuries, and in attempting to apply decided cases to a state of facts it is important to keep in mind the law under which each case was decided. It may be conceded that appellant was negligent, but that does not prevent a recovery. The evidence must go further and show that his negligence was a proximate cause of the injury, without which the injury would not have occurred. Ackerman v.Pere Marquette, etc., R. Co., (1915), 58 Ind. App. 212, 108 N.E. 144.
And as said in Milwaukee, etc., Railway Co. v. Kellogg (1876), 94 U.S. 469, 474, 24 L. Ed. 256, 259: "The true *Page 36 rule is, that what is the proximate cause of an injury 10, 11 is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it." Where only one inference can be drawn from the facts, the court may declare whether an act was the proximate cause of the injury or not. But that is rarely the case. Graham v. Charlotte (1923), 186 N.C. 649, 120 S.E. 466. The casual relation, if any, between appellant's negligence and his injury in the instant case was a question for the jury. See also Glick v. Baer (1925), 186 Wis. 268, 201 N.W. 752, and Marcinowski v. Sanders (1925), (Mass.), 147 N.E. 275.
Petition denied.
Nichols, J., Dissents.*
* See p. 42.