Corpus Christi Speedway v. Morton, 12846

• Decision Date: 25 May 1955
• Docket Number: No. 12846,12846
• Citation: 279 S.W.2d 903
• Parties: CORPUS CHRISTI SPEEDWAY, Inc., Appellant, v. Harlie E. MORTON, Appellee.
• Court: Texas Court of Appeals

Page 903

279 S.W.2d 903

CORPUS CHRISTI SPEEDWAY, Inc., Appellant, v. Harlie E. MORTON, Appellee.

No. 12846.

Court of Civil Appeals of Texas, San Antonio.

May 25, 1955.

Lewright, Dyer, Sorrell & Redford, San Antonio, North, Blackmon & White, Corpus Christi, for appellant.

Joe J. Alsup, Corpus Christi, for appellee.

NORVELL, Justice.

This is an appeal from a judgment for $6,125 in favor of Harlie E. Morton and against Corpus Christi Speedway, Inc. The appellant was the operator of an automobile racing track or speedway, and appellee, shortly before he was injured, had been driving a car in a race being staged at the track. Morton's vehicle had been rendered immobile by a collision with another car and he had stepped over the guard rail of the track, with the intention of going either to the pits or the grandstand, when he was struck by an object later identified as a bottle. He thereupon attempted to re-cross the guard rail, with the evident intention of re-entering his stalled automobile for protection, when it was again struck by a racing automobile and Morton's leg pinioned between the guard rail and his car, causing severe personal injuries.

Numerous special issues were submitted to the jury, some were answered favorably to Morton and some otherwise. The findings relied upon to support the judgment were that appellant's action in permitting persons to carry bottles into the grandstand constituted negligence which was a proximate cause of appellee's injuries (Special Issues Nos. 4 and 5).

We have concluded that the judgment must be reversed upon two grounds, first, the cause of action asserted by Morton was conclusively barred by a release executed by him, and, second, there is no evidence supporting the jury's findings upon the negligence and proximate cause issues above set out.

The appellee, Morton, did not enter the track or grandstand as an ordinary spectator. He did not purchase an ordinary admittance ticket, but procured a special ticket or license referred to as a 'pit pass.' He paid the sum of one dollar, which went into a special fund to be used in paying the medical expenses and hospital bills of any of the contestants who might be injured in the races. Morton, as well as all others who entered the premises primarily as participants upon a 'pit pass,' executed a form of release which read as follows:

'For and in consideration of the privilege to drive on, work in pits, act in any capacity of an official, or compete for certain cash prizes and other emoluments, the undersigned hereby swears that he or she is of legal age (21 years of age) and has an automobile driver's license, and releases and discharges the Corpus Christi Speedway, Inc., the owners of the racing cars, and the sponsor or sponsors of the various events, from any and all claims, suits and causes of action for any personal injuries, property damage, or claims for wrongful death, whether caused by the negligence of the above or not. The undersigned driver, car owner, sponsors, or participants in any of the events held at the Corpus Christi Speedway to hereby relinquish all rights to any photos taken at the Speedway and give their permission to publish or sell or otherwise dispose of said photographs as the track management so desires.'

Appellee construes this release as having application only while he was competing in a race, working in the repair pits or acting in some capacity as an official. While the consideration stated mentions these respective capacities and activities, the release clause in plain and unambiguous language provides that the person executing the same 'releases and discharges the Corpus Christi Speedway, Inc., the owners of the racing cars, and the sponsor or sponsors of the various events, from any and all claims, suits and causes of action for any personal injuries, property damage, or claims for wrongful death, whether caused by the negligence of the above or not.'

The release as written absolves appellant of liability for appellee's injuries. However it is contended that the release can not be given literal effect because of reasons of public policy. It is seemingly admitted that a release of the nature here involved and applying only to participants in racing contests would be valid, Missouri-Kansas, Texas Ry. Co. of Texas v. Carter, 95 Tex. 461, 68 S.W. 159; Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S.W. 179; Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 175 U.S. 91, 20 S.Ct. 33, 44 L.Ed. 84; Broderson v. Rainier National Park Co., 187 Wash. 399, 60 P.2d 234; 2 Restatement of the Law of Contracts, §§ 574, 575, but appellee's position is that at the time of his injury, he occupied the status of a spectator and not that of a participant in a racing contest.

Appellee's theory is that after his racing car had collided with another and he had ascertained that it would no longer operate, he decided to leave the track and become a spectator and thereupon and thereafter appellant's duty to him was the same as it was to any other spectator, and that because of public policy consideration, the release was ineffective to bar his claim. Appellee testified that he knew of no reason why anyone in the grandstand would throw a bottle at him, and that, so far as he knew, his actions as a driver in the race were wholly unconnected with the incident.

In our opinion, appellee's intention at the time he left the track to become a spectator or go into the pits or take some other action, is immaterial. The question is not whether appellee was participating in a race or viewing a race, but rather whether or not, in view of the public policy considerations involved, a valid contractual distinction should be recognized as between appellee and those similarly situated, on the one hand, and the general public, on the other hand. Under the authorities above cited, we believe such distinction is valid and should be upheld. Except for the one dollar contributed to a medical expense fund, appellee paid no admittance charge. He belonged to a class which generally participated in the staging...