Cecil v. Hardin

• Decision Date: 29 December 1978
• Citation: 575 S.W.2d 268
• Parties: Mr. and Mrs. Walter W. CECIL, Individually and as Mother and Father of Marcus H. Cecil, Deceased, Petitioners, v. David Brian HARDIN, Respondent.
• Court: Tennessee Supreme Court

Page 268

575 S.W.2d 268

Mr. and Mrs. Walter W. CECIL, Individually and as Mother and Father of Marcus H. Cecil, Deceased, Petitioners, v. David Brian HARDIN, Respondent.

Supreme Court of Tennessee.

Dec. 29, 1978.

J. B. Cobb, Hayden Lait, Memphis, for petitioners.

Robert M. Fargarson, Memphis, for respondent.

OPINION

COOPER, Justice.

This is an action for the wrongful death of Marcus Cecil, who was killed when he was struck by a car in which the respondent, David Hardin, was a passenger. At the close of the proof, the trial judge directed a verdict for Hardin. The Court of Appeals upheld his ruling. We affirm.

For the most part, the evidence is not in dispute. Joe David Edwards, age 20, and Hardin, age 21, were friends of long standing. One Saturday evening, they met at the apartment of a mutual acquaintance in Memphis. While there, both had several beers, and it appears that Hardin smoked some marijuana. In addition, Edwards took two pills of a controlled substance, ¹ though this was not known to Hardin until later in the evening. Edwards and Hardin left the apartment together, in Edwards' car, with plans to go to a party together later that night. The details of their further activities that night, in so far as they are material to the issues before this court, will be dealt with presently. At this point, it will suffice to say that the two spent the rest of the night driving about the city. During the course of their travels, they bought and consumed more beer, and Hardin took several pills of methaqualine. By late in the evening, by their own admission, both were under the influence of alcohol and drugs. At about 1:00 a. m., the car, with Edwards driving, struck Marcus Cecil as he rode his bicycle along the side of the road. Although both youths knew that they had collided with something, by their account neither realized that it was a person and they did not stop to render aid. They were arrested by police some time later, after two other accidents, these relatively minor.

Both Hardin and Edwards were sued for Cecil's wrongful death, and the two were tried jointly. The jury returned a verdict against Edwards, which was not appealed. However, at the close of the proof, the trial judge directed a verdict for Hardin, holding that there was no proof either of any negligence on his part that was a proximate cause of Cecil's death, or of any relationship between Hardin and Edwards such that the latter's negligence might be imputed to Hardin. It is the propriety of that action that is before this court.

On review of the grant of a directed verdict on motion of a defendant, it is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial judge's action may be sustained only if there is no material evidence in the record that would support a verdict for the plaintiff, under any of the theories that he has advanced. Keller v. East Tennessee Production Credit, 501 S.W.2d 810 (Tenn.App.1973).

In the instant case, the petitioners insist that there is material evidence from which a jury could find both that Hardin was guilty of negligence, independent of the acts of Edwards, that was a proximate cause of Cecil's death, and that Hardin was jointly liable with Edwards for damages caused by Edwards' negligent operation of the automobile. The basis of this latter insistence is two-fold: First, the petitioners insist that Hardin and Edwards were engaged in a joint venture, and, secondly, they argue that Hardin aided and abetted Edwards in a series of unlawful acts that resulted in the accident.

With respect to the contention that the jury could have found that Hardin was guilty of independent acts of negligence, the petitioners have advanced several theories. First, they have argued that Hardin was negligent in permitting Edwards to drive, knowing him to be under the influence of either drugs or alcohol. We find no merit in this argument. A passenger has no duty to the public to control or to attempt to control the operation of a vehicle where he has no right to do so, either as a result of his relationship to it or to the driver. 6 Blashfield, Automobile Law & Practice, § 251.6 et seq. (3d ed. 1966). See, e. g., Coffman v. Kennedy, 74 Cal.App.3d 28, 141 Cal.Rptr. 267 (1977); Sloan v. Flack, 150 So.2d 646 (La.App.1963); Mims v. Coleman,248 S.C. 235, 149 S.E.2d 623 (1966). Cf. Restatement (Second) of Torts, § 315. Here, there is no evidence from which the jury might have found that Hardin had a right to control the operation of the automobile, as opposed to the mere "right" to make suggestions, in which Edwards might or might not acquiesce. Compare Malbrough v. Davidson, 219 So.2d 313 (La.App.1969); Galvan v. Sisk, 526 S.W.2d 717 (Tex.Civ.App.1975).

The petitioners have also claimed that liability could have been imposed on Hardin as a result of his failure to stop and give assistance to Cecil, after the latter had been struck by the automobile. In this, the petitioners are also in error. A passenger is under no legal duty to stop and give assistance to a person injured by the car in which he is riding, unless the passenger's conduct caused the accident or there is some special relationship either between the passenger and the driver that would make the passenger jointly responsible with the driver for the accident, or between the passenger and the injured party independently giving rise to such a duty to aid. See Restatement (Second) of Torts, § 322; Annot., 33 A.L.R.3d 301; 57 Am.Jur.2d Negligence § 41. The petitioners have made no allegation of any special relationship between Cecil and Hardin. Thus, in order to recover on this theory, the petitioners must show that Hardin was responsible for the accident itself, directly or as a result of his relationship with Edwards. As may be seen from the balance of this discussion, the petitioners have failed to do either.

Implicit in the petitioners' argument is yet a third theory of liability, that Hardin was negligent in providing beer for Edwards, knowing both that he was under the influence of alcohol or drugs, and that he would be driving. However, even assuming that the petitioners are correct, and that the jury could have found that Hardin's actions in this respect were negligent, ² we do not believe that it could have imposed liability on him based on that finding. At common law, an individual who furnished alcohol to another was not liable for any damages resulting from the other's intoxication, even if those damages were foreseeable, in part because the other's acceptance of the intoxicants was considered an independent intervening cause, cutting off any liability. Tarwater v. Atlantic Co., 176 Tenn. 510, 144 S.W.2d 746 (1940). See also Annot., 75 A.L.R.2d 821; 45 Am.Jur.2d Intoxicating Liquors § 554. Courts of this state have modified the common law rule in the past, holding, for instance, that liability might be imposed in certain circumstances on commercial purveyors of liquor who provided it to an intoxicated customer. See, e. g., Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1964). ³ However, we have found no decision, and none has been cited to us, in which such liability has been imposed on those who provided intoxicating beverages in a social context, as Hardin did here, nor do we believe that we should set such a precedent. So great a departure from settled law, with its myriad implications for casual social intercourse, is better left to the legislature. See Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965); Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969); Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300 (1964); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (1975), aff'd 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976); Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970).

As we mentioned previously, the petitioners have contended as well that there is evidence from which the jury could have found that Hardin was responsible for the various negligent and unlawful acts committed by Edwards, which, for the purposes of this discussion, may be assumed to have been proximate causes of Cecil's death. To establish this joint responsibility and thus liability, the petitioners have argued first that there was evidence from which the jury could have found that Hardin and Edwards were engaged in a joint venture. We disagree. The elements that need to be shown to establish a joint venture among several parties are a common purpose, some manner of agreement among them, and an equal right on the part of each to control both the venture as a whole and any relevant instrumentality. Spencer Kellogg & Sons, Inc. v. Lobban, 204 Tenn. 79, 315 S.W.2d 514 (1958); Evans v. Allstate Insurance Co., 194 So.2d 762 (La.App.1967); Manley v. Horton, 414 S.W.2d 254 (Mo.1967). These elements have not been shown here. In particular, as we noted above, there was no evidence from which the jury might have found that Hardin had a right to control the operation of the vehicle. Furthermore, the evidence shows that the two youths were associating together casually, for social purposes only. Liability predicated on a joint venture theory of mutual responsibility is not imposed in instances in which the parties join together purely for pleasure, but is reserved, rather, for cases in which the parties associate for business, or expense sharing, or some comparable arrangement. See, E. g., Easter v. McNabb, 97 Idaho 180, 541 P.2d 604 (1975); Hall v. Blackham, 18 Utah 2d 164, 417 P.2d 664 (1966). Cf. Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32 (1926).

Finally, the petitioners have argued that under the evidence presented at trial Hardin could be held liable for Edwards' acts because he "aided and abetted" Edwards' unlawful activities. Again, we...