Cole v. Woods

• Decision Date: 17 March 1977
• Citation: 548 S.W.2d 640
• Parties: Sallie Price COLE, Petitioner, v. David Lee WOODS et al., Respondents.
• Court: Tennessee Supreme Court

Page 640

548 S.W.2d 640

Sallie Price COLE, Petitioner, v. David Lee WOODS et al., Respondents.

Supreme Court of Tennessee.

March 17, 1977.

Lloyd S. Adams, Jr., Adams & Albright, Humboldt, for petitioner.

Hewitt P. Tomlin, Jr., Waldrop, Hall, Tomlin & Farmer, Jackson, for respondents.

OPINION

HENRY, Justice.

We granted certiorari in this wrongful death action primarily in order to reexamine the rule of law requiring that in a suit against a third party tortfeasor, the negligence of a non-owner driver must be imputed to a non-negligent owner passenger. ¹ The Court of Appeals felt constrained to follow the rule announced in Ringwald v. Beene, 170 Tenn. 116, 92 S.W.2d 411 (1936) and followed in other cases, notably, Angel v. McClean, 173 Tenn. 191, 116 S.W.2d 1005 (1938) and Snyder v. Missouri Pacific Railroad Co., 183 Tenn. 471, 192 S.W.2d 1008 (1946).

I.

On Tuesday night, December 4, 1973, at approximately 10:00 o'clock, plaintiff's decedent, an eighteen year old woman, was fatally injured on a rural road running in front of her residence, when her automobile, operated by her fiance, was struck by a vehicle operated by the defendant, David Woods. They were en route to a nearby service station to purchase gasoline for her automobile. As they left her residence she handed the keys to her fiance, thereby impliedly asking that he drive.

He backed out the driveway into Hopper Barker Road and had reached a point where his vehicle, generally speaking, was in his right-hand lane, when the automobile operated by the respondent, David Woods, "topped" a hill headed in their direction. While this is strongly disputed, it was insisted by petitioner that the oncoming vehicle was approaching at a high rate of speed, with headlights on high beam, and on the wrong side of the road. Upon observing the approach of the oncoming automobile, the driver of the decedent's automobile attempted to drive back into the driveway and was hit by the oncoming car.

The trial jury awarded full and actual damages for the petitioner's automobile, and for the cost of hospital, funeral and ambulance, but made no award for the pecuniary value of the life of the deceased.

II.

Numerous and sharp factual disputes were presented. It is neither necessary nor proper that we attempt to reconcile them.

The complaint charges the respondent, David Woods, and by imputation, the other respondents, with "willful and wanton disregard of the rights and safety of others", and specifically charges gross negligence.

Without weighing the evidence, or evaluating its preponderance, we find that there was evidence from which the jury might have found, among other things, that the defendant, David Woods:

a. was driving on the wrong side of the road;

b. was driving substantially in excess of the legal speed limit;

c. had been drinking;

d. approached the point of impact with his lights on "bright"; and

e. had diverted his attention to adjusting his car radio and was not keeping a lookout ahead.

Further, it is admitted that he was fifteen years of age and was operating his vehicle in the nighttime, under a restricted license, unaccompanied by a licensed parent or guardian, in violation of Sec. 59-704, T.C.A.

These contentions, supported by the testimony (not necessarily by the preponderance or better weight), clearly made a jury issue of the question of gross negligence. Taken collectively they would show "(a) heedless and reckless disregard for another's rights with the consciousness that the act or omission to act may result in injury to another", Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 130, 178 S.W.2d 756, 757 (1943); or negligent acts "done with utter unconcern for the safety of others" or "with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law". Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn.App.1972). These are commonly accepted definitions of gross negligence in Tennessee.

This case was submitted to the jury on the basis of ordinary negligence. The trial judge made no reference to gross negligence.

It is the duty of the trial judge to instruct on every issue of fact or theory of the case raised by the pleadings and supported by the proof. Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953); Taylor v. State, 212 Tenn. 187, 369 S.W.2d 385 (1963). In view of the pleadings and proof in this case the trial judge should have covered the question of gross negligence in his main charge. When he failed to do so, counsel for the plaintiff tendered the following special request:

If you find from the weight of the evidence that defendant David Woods drove and acted in willful and wanton disregard of the rights and safety of others, especially Jeanette Price, then he would be guilty of gross negligence.

If you do find from the weight of the evidence that defendant David Woods was guilty of gross negligence, then any ordinary negligence of Mitchell imputed to Jeanette Price would not bar a recovery, and it would be your duty to find for the plaintiff.

This is a correct statement of the law, when taken in conjunction with the main charge, and should have been given. It follows that the trial judge, had he given the requested charge, also should have instructed the jury that ordinary negligence would mitigate the damages awardable for defendant's gross negligence. Hood v. Waldrum, 58 Tenn.App. 512, 434 S.W.2d 94 (1968).

The failure of the trial judge to submit this substantial and significant issue to the jury was prejudicial error and we must, therefore, reverse and remand.

This brings us to the principal issue in this lawsuit, which we must address for the guidance of the trial judge on remand.

III.

It was established as a rule of law in Tennessee, in Turnpike Co. v. Yates, 108 Tenn. 428, 67 S.W. 69 (1902) that when a person riding in the carriage of another sustains injury as a result of the negligence of a third party, he may recover against the latter notwithstanding the negligence of the owner (driver) of the carriage where the passenger is "without fault and has no authority over the driver". 108 Tenn. at 441, 67 S.W. at 72.

Thirteen years later this Court was confronted with a case of first impression, viz: Is the contributory negligence of the husband-driver imputable to the wife-passenger? In Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117 (1915), the Court answered in the negative. It is interesting and significant that the Court pointed out a distinction which many decisions tend to ignore, i. e., that the passenger may be guilty of his own personal negligence. The Court said:

(I)f an adult, who while riding in a vehicle driven by another sees, or ought by due diligence to see, a danger not obvious to the driver, or who sees that the driver is incompetent or careless, or is not taking proper precautions, it is his duty to give some warning of danger, and a failure to do so is negligence. 132 Tenn. at 498, 178 S.W. at 1120.

But it is the direct and personal negligence of the passenger existing independent of, or in conjunction with, the negligence of the driver, and imputed negligence is not actually involved.

In Tennessee Central R.R. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225 (1920) the Court followed Turnpike Co. v. Yates, supra, and held that the question of the failure of the guest to exercise due care was one of fact to be determined by the jury.

The celebrated case of Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32 (1926) was decided in a most excellent opinion by then Chief Justice Grafton Green. First, Justice Green reiterated the Yates-Vangilder rule against the imputation of negligence to a passenger "without fault", unless the driver is under the control or authority of the passenger.

Next Judge Green wrote that "(t)o justify the imputation of negligence, there must be agency on the one hand, authority on the other." 152 Tenn. at 591, 280 S.W. at 33. While not specifically so stating, the Court quite obviously charged plaintiff with his own negligence in riding in an automobile with a drunken driver, as opposed to imputing the driver's negligence to him.

A fair summary of the law prior to 1936 would be that the negligence of the driver was not imputable to a passenger without fault unless he had some authority or control over the driver; but that it was the duty of the passenger to exercise due care for his own safety by warning of danger of perils unseen by the driver, by cautioning against careless or incompetent conduct on his part, and by not voluntarily placing himself in a position of peril by riding with a drunk or incompetent driver. The negligence of the passenger was a question of fact to be determined by the jury. An agency relationship was necessary to impute negligence.

In 1936, this Court decided Ringwald v. Beene, 170 Tenn. 116, 92 S.W.2d 411 (1936), the first Tennessee case to deal with imputed negligence from the standpoint of an owner-passenger. The factual situation was that plaintiff, a schoolteacher, was being driven to Middle Tennessee State Normal ² for the purpose of attending a session designed to advance her educational qualifications. She was travelling in a car that belonged to her, and her husband was driving. In holding that the negligence of the husband-driver was imputable to the non-negligent wife-owner, the Court said:

We do not see that the husband, driving this car on this mission, occupied a position different from that of any other driver whose services the wife might have secured. It was her car, her trip, and her driver. She was in control of the situation, and we think any negligence of her driver must be imputed to her. (Emphasis supplied). 170 Tenn. at 122, 92 S.W.2d at 413.

In reaching this conclusion the Court alluded to Vangilder, supra, recognized the general rule that when a wife is riding in automobile operated by her husband, his negligence cannot be imputed to her, and cited four cas...