Bowman v. Puckett

• Decision Date: 27 June 1945
• Docket Number: No. A-515.,A-515.
• Citation: 188 S.W.2d 571
• Parties: BOWMAN v. PUCKETT.
• Court: Texas Supreme Court

Page 571

188 S.W.2d 571

BOWMAN v. PUCKETT.

No. A-515.

Supreme Court of Texas.

June 27, 1945.

Rehearing Denied July 21, 1945.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Lillian E. Bowman, for herself and her minor daughter, against Lee Ross Puckett for damages for the death of plaintiff's husband who was killed as the result of an automobile accident. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals, 185 S.W.2d 228, and plaintiff applies for writ of error.

Judgments of district court and Court of Civil Appeals reversed and cause remanded.

S.N. McWhorter, of Weslaco, and Davenport & Ransome, of Brownsville, for petitioner.

Strickland, Ewers & Wilkins, J.E. Wilkins, and Magus F. Smith, all of Mission, and Boone, Boone & Davis, of Corpus Christi, for respondent.

SMEDLEY, Commissioner.

The suit is by petitioner, Mrs. Bowman, for herself and her minor daughter, against respondent Puckett, to recover damages caused by the death of her husband, who was killed while traveling as a guest, without pay, in an automobile owned by Puckett and operated by him on a public highway. The petition alleged, and the trial court found, that petitioner's husband was being transported as a nonpaying guest by respondent, that he died as the result of injuries suffered by him when the automobile crashed into a palm tree in the City of Weslaco, that under the circumstances which existed at the time of the accident respondent was driving the automobile at a speed which amounted to a heedless and reckless disregard of the rights of others, including the deceased, and that the heedless and reckless disregard of the rights of others on the part of Puckett amounted to gross negligence, which was the proximate cause of the death of petitioner's husband. Thus the case was brought within the provisions of Chapter 225, Acts Regular Session of the 42nd Legislature (pp. 379, 380), known as the guest statute, Article 6701b, Vernon's Annotated Civil Statutes. Judgment was rendered in favor of petitioner for $1639.50 and in favor of her minor child for $860.50.

Both parties excepted to the trial court's judgment, but only petitioner, plaintiff in the trial court, perfected an appeal by filing an appeal bond. However, respondent, defendant in the trial court, filed cross assignments of error in the Court of Civil Appeals, contending that there is no evidence to support the trial court's finding of gross negligence and that the finding is against the great weight and preponderance of the evidence. The Court of Civil Appeals sustained respondent's contention of no evidence, reversed the trial court's judgment, and rendered judgment that petitioner take nothing. 185 S.W.2d 228.

The first point in the application for writ of error is that actions authorized by Articles 4671-4675 of the Revised Civil Statutes, which is the general statute permitting recovery of damages for injuries resulting in death, "are not precluded" by the automobile guest statute. The contention seems to be that petitioner acquired her right to sue from and under Articles 4671-4675, which authorize the beneficiaries named therein to recover damages for injuries resulting in death when the injuries are caused by ordinary negligence, as well as when they are caused by willful act, or omission, or gross negligence, and that the language of the guest statute limits only the rights of persons transported and not the rights of those who are authorized by the prior statute, Articles 4671-4675, to sue.

This is, in our opinion, too literal a construction of the language of the guest statute, which expressly makes reference to causes of action for damages for death as well as to causes of action for damages for injuries which do not result in death. This statute and the general statute authorizing suits for damages for injuries resulting in death should be construed together, and the terms of the guest statute which preclude recovery for ordinary negligence should be applied to the beneficiary's suit when the guest's injuries have resulted in death as well as to the guest's suit for damages for his injuries. This is the construction that, in effect, has been given the two statutes, although we have found no case in which the very question presented by petitioner has been discussed. Campbell v. Paschall, 132 Tex. 226, 121 S. W.2d 593; Paschall v. Gulf, C. & S.F. R. Co., Tex.Civ.App., 100 S.W.2d 183.

Under another point in the application for the writ, the position is taken that the construction placed upon the guest statute by the Court of Civil Appeals deprives the petitioner of rights guaranteed by Section 26, Article XVI, of the Constitution of Texas, Vernon's Ann.St. That section provides that every person, corporation or company that may commit a homicide, through willful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, etc. The trial court's findings of fact and the opinion of the Court of Civil Appeals show that both courts, in harmony with prior decisions, gave to the words "heedlessness or his reckless disregard of the rights of others" used in the guest statute the same meaning as the term gross negligence, and thus recognized the right of the beneficiary of the deceased guest to recover for gross negligence. This construction of the guest statute brings it into accord with Section 26 of Article XVI of the Constitution. See Rowan v. Allen, 134 Tex. 215, 134 S. W.2d 1022; Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593; Paschall v. Gulf, C & S.F.R. Co., Tex.Civ.App., 100 S.W.2d 183; Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, application for writ of error refused; Texas P. Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A. L.R. 262. The Court of Civil Appeals correctly construed the guest statute, but in our opinion erroneously concluded that there is no evidence to support the trial court's finding of gross negligence on the part of respondent in the operation of the automobile.

The accident occurred between 12:30 and 1:30 P.M. on one of the principal streets, being also state highway No. 281, of the City of Weslaco, an incorporated city having a population of approximately 6,000. Pierce Albert Bowman was traveling as the guest of respondent Puckett in a six cylinder Packard automobile owned and operated by respondent. Puckett and Bowman were returning from McAllen to Mercedes, driving over the state highway, which is a heavily traveled three-lane highway running from west to east through McAllen, Donna, Weslaco, Mercedes and on to Brownsville. Before it reached the limits of the city of Weslaco the automobile was traveling at a rate of 75 to 80 miles an hour, and the speed was not decreased when the city was entered. The automobile continued to travel at the same high rate of speed until it was about five blocks, or from one-fourth to one-half a mile, within the city and east of the city's western boundary, when the brakes were applied, reducing the speed to 40 or 50 miles an hour. The witnesses estimated the speed of the automobile, before the brakes were applied, at from 75 to 90 miles an hour. Respondent was present at the trial but did not testify. There is testimony that he said a short time after the accident that he might have been traveling 75 miles an hour or "might have had it wide open". A mechanic testified that the automobile would "do better than 80 miles an hour". The application of the brakes caused the car to skid and swerve. It first swerved close to the curb on the south side of the street and then curved across the street and, turning abruptly toward the north, went over the curb and was wrecked and caught fire when it struck a large palm tree. The two occupants of the automobile were thrown from it, an ambulance was called and they were taken to a hospital at Mercedes, where Bowman died.

The automobile was described by witnesses as a total wreck. The top was crushed and the body was bent into the shape of a rocking chair, so that neither the front nor the rear wheels would touch the ground. A mechanic who, immediately after the accident, examined the skid marks on the street, following them about three hundred feet, testified that they were caused by the application of the brakes and expressed the opinion, deduced from the marks and from the way in which the car went first to one side of the street and then to the other, that the traction on the brakes was unequal or that the brakes were acting incorrectly.

The automobile was wrecked near a gasoline service station and a short distance west of a hotel, both on the highway. This place is about a block and a half west of the intersection of the state highway and Texas Boulevard, where there is a traffic light. Texas Boulevard is the principal north and south street or highway through Weslaco and carries heavy traffic. From the western limits of the city to the place where the accident occurred the city is well improved along the south side of the state highway, there being residences, tourist parks, cafes, gasoline service stations, a tire store, etc. On the two corners about a half block east of the place of the accident are a...