Elkins v. Foster, 4669.
| Decision Date | 23 November 1936 |
| Docket Number | No. 4669.,4669. |
| Citation | 101 S.W.2d 294 |
| Parties | ELKINS et ux. v. FOSTER. |
| Court | Texas Court of Appeals |
Royston & Rayzor, of Houston (John R. Brown, of Houston, of counsel), for plaintiffs in error.
Ewing Werlein and W. A. Combs, both of Houston, for defendant in error.
Defendant in error, M. E. Foster, sued the plaintiffs in error, W. H. Elkins and wife, to recover damages alleged to have resulted from personal injuries received by Foster while riding in the automobile owned by Mr. Elkins and being driven by Mrs. Elkins in the city of Houston.
The substance of the second amended original petition, upon which the case was tried, is that Elkins and wife owned a Chevrolet automobile in which, about 9 o'clock on the morning of the 22d day of October, 1933, plaintiff was riding; that defendants were attempting to transport plaintiff from his home in the suburbs of Houston to the business section of the city, and the automobile was being driven West on Palm street; that as they approached Burkett street, the driver of the automobile increased its speed to thirty miles per hour and in excess of the legal speed limit; that where Burkett street intersects with Palm street, there are built into the intersection dips or depressions on either side of the center line of Burkett street at the point of intersection, which dips are from eight to twelve inches below the surrounding street level, and about two feet wide; that the dips are so constructed that they result in serious consequences if the speed laws of the state and city are not obeyed; that defendants well knew, or by the exercise of ordinary care should have known, of such dips; that they approached said dips at thirty miles per hour, in heedless disregard thereof, and as they ran into and out of the dips the back portion of the car in which plaintiff was riding was caused to be thrown violently upward, and plaintiff was thrown from his position on the back seat against the top of the car, striking his head and back, and inflicting other serious injuries.
It is further alleged in substance that for some weeks prior to the date of the accident and subsequent thereto, Foster was engaged in the performance of substantial services for the defendants in this: That at defendants' request, plaintiff was attempting to secure the retention of a close relative of one of the defendants in a position which such relative held, but was on the point of losing; that plaintiff's services were performed gratuitously for defendants because of his friendship for them, and on the morning of the accident they had visited plaintiff for the purpose of discussing the matter with him, and while at plaintiff's home defendants learned of plaintiff's desire to go up town and invited plaintiff to accompany them in their automobile, their invitation being extended not only as an act of courtesy, but for the purpose of enabling defendants to further and more leisurely discuss the business matter concerning which the defendants had called to see plaintiff; that he went with them instead of in his own car for the purpose of providing an opportunity for the further discussion of the service which plaintiff was performing for the defendants, and for which plaintiff received no reward whatever, and from which the defendants expected to and did receive definite, tangible, and substantial benefit from plaintiff's services, by reason of which fact plaintiff was not a guest in the automobile within the purview of article 6701b of the Revised Statutes of Texas (Vernon's Ann.Civ.St.), and received no substantial benefit from the transportation, but was riding therein for the accommodation of the defendants without any benefit whatever accruing to plaintiff.
It is further alleged that the disabilities and injuries sustained by plaintiff were the proximate result of the negligence, heedlessness, and reckless disregard of the rights of others in driving their automobile at a high and dangerous rate of speed in excess of twenty miles per hour without keeping a reasonable lookout for dips or other obstructions, without having inspected the brakes and keeping them in good working order, in failing to apply the brakes at a reasonable time, in failing to slow the vehicle down as it approached and entered the intersection, and in driving and operating the automobile in question without having it under reasonable and proper control, all of which constituted gross negligence and heedless and wanton acts and omissions.
The petition then describes the resulting physical injuries, and concludes with a prayer for $5,000 damages, with interest and costs of suit.
Defendants, in their second amended original answer, upon which they proceeded to trial, in addition to general demurrer and general denial, specifically denied the various acts of negligence, and then by way of affirmative defenses alleged that the damages and injuries sustained by plaintiff were caused by and contributed to directly and proximately by the negligence of plaintiff in his failure to warn the driver of the danger of operating the car in the manner in which it was being driven, and in failing to protest and to keep a reasonable lookout for dips, and in failing to brace himself from being thrown about in the rear seat.
The case was submitted upon special issues, in response to which the jury found that Foster was not the guest of defendants, but was rather one who had paid for his transportation in the defendants' automobile; that the defendants were guilty of negligence, heedlessness, and reckless disregard for the rights of plaintiff, proximately causing his injuries, in respect of the speed at which the car was being driven, the failure to keep a lookout, the failure to slow down, the failure to equip the car with adequate brakes in good working order, and failure to keep the car under reasonable control; that the accident was not an unavoidable one, and that the plaintiff, Foster, was not guilty of negligence proximately causing or contributing to cause his injuries in respect of the failure to keep a lookout, failure to warn, to demand that the speed be reduced, to demand that the brakes of the automobile be applied, or to brace or otherwise guard himself against being thrown about in the car as it might hit dips in the street or intersections. They assessed plaintiff's damages at the sum of $1,500.
Vernon's Ann.Civ.St. art. 6701b, § 1, is as follows: "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."
Section 2 of the act has no application to this case.
The appellants submit their case upon five propositions, and the only error of which complaint is made in any of them is the action of the court in overruling appellants' motion for an instructed verdict in their behalf. Each proposition challenges the sufficiency of the evidence or the want of evidence to support the jury's findings upon the issues of whether Foster was a guest within the terms of the "guest statute," and whether the appellants were guilty of heedlessness and a reckless disregard of the rights of Foster within the meaning of the article of the statute just quoted. We have, therefore, two questions for decision: First, was Foster a guest at the time of the injury? and, second, Were appellants guilty of heedlessness and a reckless disregard for Foster's safety? In our opinion, it will not be necessary to consider the second question.
Except Joe Litterst, a professional photographer who took some photographs of the place of the accident, all the testimony elicited from Mr. and Mrs. Elkins and from Mr. Foster.
It is shown that Elkins had resided in Houston a long time where he was engaged in the operation of a barber shop of which he was part owner; that he had known Foster for many years and had been Foster's barber; they were friends and Foster thought highly of Elkins. It appears that Elkins had a brother who had been appointed under the former Republican administration as postmaster at Freeport, Tex., and some time before the day of the accident, possibly four weeks, Elkins had talked to Foster about the possibility of his brother losing his postmaster's position upon the incoming of the Democratic administration. Foster is the editor of one of the leading daily papers in Houston, and a man of considerable influence, and Elkins thought that Foster might be able to exert his influence so that the brother, in spite of political changes, might remain as postmaster at...
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