Cone v. Smith

• Decision Date: 29 October 1954
• Docket Number: No. 8214,8214
• Citation: 76 So.2d 46
• Parties: Kermit N. CONE, Plaintiff-Appellee, v. Edgar B. SMITH et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 46

76 So.2d 46

Kermit N. CONE, Plaintiff-Appellee, v. Edgar B. SMITH et al., Defendant-Appellant.

No. 8214.

Court of Appeal of Louisiana, Second Circuit.

Oct. 29, 1954.

Rehearing Denied Dec. 10, 1954.

Writ of Certiorari Denied Feb. 14, 1955.

Jackson, Mayer & Kennedy, Shreveport, Royal H. Brin, Jr., Dallas, Tex., for appellant.

Roy M. Fish, Springhill, Sidney Lee, Texarkana, Tex., for appellee.

GLADNEY, Judge.

In this suit the plaintiff, Kermit N. Cone, seeks recovery of damages arising from an automobile accident in which his wife, Iva Lee Aycock Cone, was killed while riding as a gratuitous passenger in an automobile owned and driven by Edgar B. Smith. Originally Smith and his insurer, Firemen's Insurance Company of Newark, New Jersey, were made parties defendant, but prior to trial plaintiff entered a voluntary dismissal of non-suit as to the defendant insurance company. Following a trial on the merits, judgment was rendered in favor of plaintiff, awarding the sum of $24,000. From this judgment the defendant has appealed, and plaintiff has answered the appeal asking that the award in his favor be increased to $125,349.50, as alleged upon in the petition.

There is little, if any, conflict in the evidence submitted. On February 10, 1952, Edgar B. Smith was driving a Cadillac car when it was in a head-on collision with a motor vehicle driven by a Negro, Elijah Robinson. At the time of the accident Mr. Smith, accompanied by his wife, Pauline Harvill Smith, his minor daughter Chloteel Smith and Mrs. Cone were returning to Springhill, Louisiana, after a visit in San Antonio, Texas. The accident occurred on Texas State Highway No. 21, about twelve miles south of Madisonville, Texas, about nine o'clock P. M. on a clear and dark night.

Smith observed the approaching Robinson vehicle when it was about two hundred yards away. As the two cars were meeting, the Robinson car crossed the center line into the traffic lane being properly used by Smith. When this happened, Smith exclaimed: 'That s.b. is going to hit us,' whereupon he applied his brakes and turned his car so far to the right his right wheels were over on the shoulder of the highway. Notwithstanding these efforts a head-on collision occurred on Smith's right-hand side of the highway. The Smith automobile immediately caught fire and both Chloteel Smith and Mrs. Cone were burned to death. Smith testified, and in this he is corroborated by Mrs. Smith, that just prior to the collision he was driving at a speed of from eighty-five to ninety miles per hour.

Mrs. Smith testified that a short time before the collision occurred she remarked that her husband was driving too fast and Mrs. Cone said: 'He sure is.'

The highway was blacktopped and just before sighting the Robinson vehicle, Smith had come over a hill. Prior to that point the road was hilly and curving. Photographs filed in evidence indicate that the collision occurred where the road was slightly downgrade but comparatively straight for a considerable distance eastward from the point of impact.

The pictures plainly show tire impressions of the Smith automobile on the highway leading toward a discolored spot where the collision took place and the Cadillac burned. The tire marks give mute testimony that upon discovering his peril Smith made every effort to avoid the collision by application of his brakes and maneuvering his car far to the right of the road.

Smith had never traveled this particular highway before. The party had had supper at a small place about twenty-five miles from Madisonville, but sometime after leaving that point Smith decided he had erroneously taken the wrong road and returned to the place where they had eaten supper. There he discovered he had been on the right road, after all, and he then, while in a state of aggravation, started back over the same road again. He testified that because it was getting late: 'I started driving a right smart faster than I generally drive.' Other evidence conclusively established at the time of the collision Elijah Robinson was in a drunken condition. Robinson subsequently died from injuries received in the collision.

Counsel for both litigants concede this appeal presents but two issues for resolution: (1) Whether recovery herein can be had under the Texas Guest Statute, art. 6701b of Vernon's Annotated Civil Statutes of Texas, which statute expressly limits liability for injuries to a gratuitous guest, and (2) if such liability be established under the statute, the measure of recovery.

In determining the liability of the defendant, Smith, the substantive law of Texas is controlling. 60 C.J.S., Motor Vehicles, § 259; Restatement of Conflict of Laws, Sec. 391; Restatement of Conflict of Laws, Sec. 378. These authorities clearly enunciate the rule that the rights and liability of parties arising out of a motor vehicle accident are governed by the law of the state in which the accident occurred. The applicable provisions of the Texas Guest Statute, 6701b, supra, are:

'Liability for injuries to gratuitous guest in motor vehicle limited; public carrier and motor vehicle demonstrators excepted

'Section 1. No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.'

In his petition plaintiff alleged that Smith drove his automobile at a great, excessive and reckless rate of speed; drove his automobile at a speed in excess of fifty-five miles per hour, contrary to law; failed to keep his automobile under proper control; and failed to keep a proper lookout. Such acts and omissions, he further alleged, constitute heedlessness or reckless disregard of the rights of others. The obvious purpose of the latter allegation is to expressly state a cause of action under the Texas Guest Statute.

At the outset we think it proper to observe plaintiff has entirely failed to prove Smith did not keep a proper lookout and did not have his car under proper control. The testimony of Mr. and Mrs. Smith and the physical facts shown in the photographs above discussed, demonstrate the inaccuracy of these averments in the petition.

From undisputed evidence we feel justified in finding that the proximate cause of the accident was the act of Robinson in turning his automobile far to the left on the highway directly in front of Smith's vehicle. It is also clearly shown Smith was alert to the danger and appropriately sought to avoid the collision. Counsel for appellee surmise that had plaintiff not been driving at such a high rate of speed he could have avoided the accident. Such an opinion finds no supporting facts in the record. The Negro's car was turned directly in front of Smith without opportunity to avoid a collision. Such an assumption would be most speculative.

Negligence alone in the operation of a motor vehicle does not give rise to a cause of action; in order to be actionable the negligence must result in injury or damage and then liability may only be imposed if such negligence is the, or a, proximate cause of the injury; that is to say--the injury must be the natural and probable consequence of a negligent act or omission, which an ordinarily prudent man ought reasonably to have foreseen might probably result in injury. See: 60 C.J.S., Motor Vehicles, §§ 251, 252; Railway Express Agency v. Knebel, Tex.Civ.App., 226 S.W.2d 922; Spratling v. Butler, 150 Tex. 369, 240 S.W.2d 1016; Knops v. Ordorica, Tex.Civ.App., 242 S.W.2d 454.

That Smith drove at a great, excessive and reckless rate of speed, which speed was in excess of fifty-five miles per hour, contrary to law, is subject to the requirements of law above stated and the factor of speed in order to create liability must not only cause the injury but must be a proximate cause of the injury. It is admitted that Smith was traveling at a speed of from eighty-five to ninety miles per hour when he first observed the approaching Robinson vehicle. After weighing every implication of this fact we still must find that the conduct of Robinson was the sole cause of the collision and the speed of the Smith vehicle was not a contributing factor.

There is an additional reason liability herein must be denied, and that is, under the jurisprudence of Texas the conduct of Smith would not be regarded as an act of heedlessness or indicative of a reckless disregard of the rights of others within the limits of liability permitted by the Texas Guest Statute. The term 'heedlessness or his reckless disregard of the rights of others' appearing in the statute has been construed by the Texas courts as having the same meaning as 'gross negligence'. Bowman v. Puckett, 1945, 144 Tex. 125, 188 S.W.2d 571; Gill v. Minter, Tex.Civ.App., 1950, 233 S.W.2d 585; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564. A further definition of the term appears in 2 Torts Restatement 1293, Sec. 500:

'The actor's conduct is in reckless disregard of the safety of...