Edenton v. McKelvey

• Decision Date: 12 June 1948
• Citation: 212 S.W.2d 616,186 Tenn. 655
• Parties: EDENTON v. McKELVEY.
• Court: Tennessee Supreme Court

212 S.W.2d 616

186 Tenn. 655

EDENTON v. McKELVEY.

Supreme Court of Tennessee.

June 12, 1948

Rehearing Denied July 17, 1948.

Error to Circuit Court, Hardin County; Frank L. Johnson, Judge.

Action by Frances McKelvey against J. V. Edenton for personal injuries sustained in an automobile accident. A judgment based on verdict for plaintiff was reversed by Court of Appeals, and plaintiff brings certiorari.

Judgment of Court of Appeals reversed and judgment of circuit court affirmed.

On Petition to Rehear.

Ross & Ross, of Savannah, for plaintiff Frances McKelvey.

Robert P. Adams, of Trenton, and P. M. Harbert, of Savannah, for defendant J. V. Edenton.

NEIL Chief Justice.

This case originated in the Circuit Court of Hardin County in an action for damages for personal injuries. There was a verdict for the plaintiff, which was approved by the trial judge. An appeal was thereupon prayed and granted to the Court of Appeals where the judgment of the trial court was reversed, four of the nine Judges of the said Court dissenting. The issue upon which the Court was in disagreement by a vote of five to four was whether or not the plaintiff's contributory negligence barred her right of action.

We granted certiorari and oral argument was recently heard at the session of court in Jackson. The determinative question in fact the only question, presented in the petition for certiorari is whether or not the trial judge should have held as a matter of law that the contributory negligence of Frances McKelvey barred her right of recovery.

Mr Justice Burnett, writing the majority opinion of the Court gave an affirmative answer to this question, that is, that Miss McKelvey, while riding as a guest of Edenton, was guilty of negligence as a matter of law because she knew, or had reason to believe, that he was not capable of driving his automobile on account of drunkenness; that the proof of the extent of his intoxication was so manifest that reasonable men should not be in disagreement about it.

Now, the four members of the Court who dissented were of opinion that when the evidence was considered in its most favorable light for the plaintiff and against the defendant that it was a jury question. In other words, it was a question for the jury to say whether Miss McKelvey knew that Edenton was too drunk to safely drive his automobile and, as we understand the minority view, reasonable men might differ as to the extent of her knowledge of his intoxication and hence it made a jury question. We do not understand, however, that the Court differed as to Edenton being drunk, but there might be ground for argument among reasonable men as to whether she knew enough about his intoxication, and the extent of it, that a person of ordinary care and prudence would not ride with him.

Should this question be decided upon the testimony of the plaintiff alone? The evidence most favorable to the plaintiff's case is what she says herself; that is, that she smelled nothing on his breath, and at one time (at the dance at Pulaski) she saw him take 'a few fancy dance steps.' Also her further statement, 'One time, I thought that maybe he was drinking, but I could not smell it.'

We do not understand that the plaintiff's evidence alone as to what she knew or did not know is controlling. Reasonable men would not differ if confined strictly and alone to her statement. The response would be in her favor. The question turns upon whether reasonable minds would differ as to what she should have known, based upon undisputed facts, or events which took place prior to the alleged accident.

The majority opinion cites the case of Packard v. Quesnel, 112 Vt. 175, 22 A.2d 164, 167, with numerous supporting authorities, which holds that 'if a person voluntarily rides in an automobile driven by one who is intoxicated and the passenger knows, or under the circumstances should have known, the intoxicated condition of the driver he is precluded from recovering from such driver,' etc. (Italics ours.)

The above authority finds support in our own case of Hicks v. Herbert, 173 Tenn 1, 113 S.W.2d 1197. Also the following from Volume 4, Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., pages 607, 608, and quoted in the dissenting opinion:

'Briefly, actual ascertainable intoxication is essential, and no contributory negligence in this connection can be asserted where, at the crucial time of undertaking or continuing the status of guest, the operator of the motor vehicle is not intoxicated to the knowledge of the guest, or to such extent that the latter is to be charged with knowledge; and, where at the inception of the journey and during its early progress, nothing in the driver's conduct betrays his being under the influence of liquor, the guest is not deemed at fault in intrusting himself in a vehicle under such driver's control. And where the guest has no opportunity to alight after discovering that the driver is intoxicated, he is not negligent.'

There is a conflict in the plaintiff's and defendant's testimony as to drinking among the four occupants of the automobile between Savannah and Pulaski and possibly on the return trip. Miss McKelvey states very positively she saw no drinking and did not take a drink herself. The defendant's testimony was to the contrary. In deciding the question before us, consideration of this evidence is pretermitted since reasonable minds might differ upon this issue.

The only undisputed evidence we have as to the plaintiff's knowledge of the defendant's intoxication is the following:

'Q. 96. Now, and you smelled nothing at all to drink on either of those boys' breaths? A. No, sir, I did not.

'Q. 97. And you didn't when you were dancing with them there at Pulaski? A. I thought one time that Mr. Edenton might be, have just a little to drink, but I didn't know for sure.

'Q. 98. Why did you think that? A. Well, he kinda cut up a little.

'Q. 99. What did he do? A. Just some fancy dance steps.

'Q. 100. And you were dancing with him? A. No, not when I was dancing with him, he was out there by himself then.

'Q. 101. And what else did he do to make you think he might have had a little to drink? A. That was all.'

She later said on redirect examination 'that had she known he was intoxicated she would not have started out with him.' On recross examination she said, 'I know he wasn't drunk.'

The accident happened about two o'clock in the morning. All the injured, and Miss Barber, who was dead, were brought to Savannah, arriving there about 3:30 or 4 o'clock.

There is testimony by Dr. Hughes who treated these boys, Edenton and Hamrick, his companion, that they were under the influence of liquor and that there was a strong odor of whiskey upon them. He was corroborated by Mr. Farris, the proprietor of the hotel at Savannah. It is argued by respondent's counsel that this being undisputed, their condition was within the knowledge of the plaintiff. But we cannot accept this as true in deciding the present issue. While it was probably true, yet to reach this conclusion we would have to base an inference upon an inference. It is not proper to infer a thing to be true merely because some other thing is inferred or supposed to be true. At best, it is for the jury to say whether or not she was chargeable with the same knowledge.

The observation of Dr. Hughes and Mr. Farris took place two hours or more after this accident. Moreover, the plaintiff's sense of smell may not have been as acute as Dr. Hughes'. Furthermore, it is shown that she was seated behind Edenton while returning from Pulaski and she did not have the same opportunity of observing his features and actions. There is no question but that she suspected that Edenton was drinking to some extent when they left Pulaski but there is nothing to show that at that time she had reason to believe he was incapable of safely driving an automobile. He drove...