Easter v. Wallace, 15948
Decision Date | 07 November 1958 |
Docket Number | No. 15948,15948 |
Citation | 318 S.W.2d 916 |
Parties | Delbert EASTER et ux., Appellants, v. Billy WALLACE, Appellee. |
Court | Texas Court of Appeals |
Roger W. Crampton, Wichita Falls, for appellants.
Jones, Parish & Fillmore and Elmer H. Parish, Wichita Falls, for appellee.
Delbert Easter and wife, Louise Easter, sued Billy Wallace for damages for the death of their son, Royce Easter, who was killed when an automobile in which he was riding, and driven by Wallace, after rounding a curve, collided with a guard rail pole and bridge and was demolished and burned. There was a summary judgment for Wallace and the Easters appeal.
Attached to and made a part of the motion for summary judgment was the deposition of appellee. There was no answer to the motion.
According to appellants' allegations, Royce was riding from Fort Worth to Wichita Falls with appellee, as a paying passenger, when the accident occurred; Wallace was guilty of negligence constituting a wanton, heedless and reckless disregard of deceased's and appellants' rights, which negligence evidenced a It was alleged that such 'acts of negligence and gross negligence' proximately caused the collision.
We understand appellants to concede that they were not entitled to go to a jury on an issue of gross negligence under the guest statute, Article 6701b Vernon's Ann.Civ.St and that they pleaded only a case of ordinary negligence causing the death of a paying passenger.
We believe that there was no genuine issue of material fact such as would defeat the motion for summary judgment. Rule 166-A, Texas Rules of Civil Procedure.
The only evidence introduced on the hearing was the deposition of appellee. His testimony was in substance: He and Royce had been friends in Wichita Falls since their school days; they 'ran around' together; they were both working for Convair in Fort Worth at the time of the accident; witness had a 1956 Chevrolet with the title in his stepfather's name, and Royce had a 1953 Chevrolet; they frequently traveled together back and forth between Fort Worth and Wichita Falls, using first one car and then the other;
'Q. Now when you and Royce decided to make this trip, at whose suggestion was it? A. Well I was coming to Wichita, I didn't know exactly when, and he had to come so we came on.
'Q. Well didn't you tell me in Ft. Worth that it was all Royce's idea to make the trip? A. It was all his idea on that trip, yes.
'Q. On that particular trip? A. That particular trip, but I was coming any way.
'Q. And he asked you to pick him up did he not? A. He did.
'Q. And he told you he was going to pay for all the expenses didn't he? A. He did, he said he would buy the gas and he didn't say what else.
'Q. He would buy all the gas for the trip? A. Right.
'Q. And do I understand that you say now that you were coming any way? A. Yes I was coming any way.
'Q. All right. A. But not that particular day.
'Q. You weren't going to go--in other words what day, did you have any day that you were planning on coming? A. No.
'Q. But at his suggestion and his offering to pay the gas, for all the gas, is that what caused you to leave when you did? A. No it was just because he was a friend of mine and he needed to come.
'Q. But the trip at that particular time was all his idea was it not? A. That's right.
'Q. And he had some business to transact here didn't he, with his father? A. He did. * * *
'Q. And did he pay for any gas? A. No.
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It is generally held that an agreement to pay a share of the operating expenses of an automobile in which one is riding does not make him a passenger...
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