Fancher v. Cadwell

• Decision Date: 04 June 1958
• Docket Number: No. A-6748,A-6748
• Parties: Ethel Mae FANCHER, Petitioner, v. Roy Lyle CADWELL, Respondent.
• Court: Texas Supreme Court

Page 820

314 S.W.2d 820

159 Tex. 8

Ethel Mae FANCHER, Petitioner, v. Roy Lyle CADWELL, Respondent.

No. A-6748.

Supreme Court of Texas.

June 4, 1958.

Rehearing Denied July 23, 1958.

Kouri & Banner, Wichita Falls, for petitioner.

Jones, Parish & Fillmore, Wichita Falls, for respondent.

SMITH, Justice.

This is a 'guest statute' case brought by the petitioner, Ethel Mae Fancher, against respondent, Roy Lyle Cadwell, for damages for personal injuries sustained when an automobile in which she was riding as respondent's guest, and which was being driven by respondent, was involved in a collision with another automobile. The petitioner alleges acts of gross negligence all in violation of Article 6701b, Section 1, Vernon's Annotated Civil Statutes of Texas. On the date of the collision, Cadwell drove his automobile to a residence where petitioner was employed as a babysitter. Cadwell arrived at this residence at approximately 11:00 p. m. The residence was located fifty to one hundred feet north of a four-lane highway, known as the Iowa Park Highway. At the point of the collision the highway ran east and west and was divided in the middle by a six-foot gravel esplanade. Cadwell drove his automobile into the private driveway leading to the residence and 'honked' the car's horn for Ethel Mae Fancher, the petitioner. He left the motor of the car running but turned off its headlights. Petitioner came to the car and asked Cadwell for a fountain pen so that her employer could write a check, and returned to the residence without entering the automobile. Petitioner, upon returning to the car, seated herself in the front seat and to the right of the respondent. Cadwell immediately backed out of the private driveway and onto the north side of the divided highway, with the lights of the automobile still turned off. Respondent admitted that as soon as he backed out he stopped the car momentarily to change gear, and that while his car was thus stopped on the gravel portion of the highway, he saw the car approaching at a speed estimated by him to be seventy or seventy-five miles per hour. The facts show that in spite of the close proximity of the oncoming car, the respondent changed the gear of his car and proceeded to drive without lights out into the four-lane highway and diagonally down the lanes of traffic reserved for west-bound traffic in an easterly direction and directly into the path of the automobile which he had observed approacing as heretofore indicated. Petitioner contends that the collision between the two automobiles took place within from two to three minutes of the time petitioner first entered the respondent's automobile. Respondent contends that only about a minute and a half of time elapsed. We shall discuss this time element later in this opinion. to special issues the jury found that Cadwell aid of a jury. The trial court instructed the jury as to the degree of negligence required in order to convict the respondent Cadwell of gross negligence. In response to special issues the city found that Cadwell drove onto the highway without yielding the right-of-way to approaching vehicles, and that such conduct was gross negligence and a proximate cause; that he drove his car onto the highway when another car was approaching so closely as to be an immediate hazard, and such was gross negligence and a proximate cause. Petitioner's damages were assessed at $7500.00. Thereafter, respondent filed a motion for judgment non obstante veredicto. The motion was based on the contention that the pleadings and uncontradicted evidence established that the respondent was 'guilty of no more than momentary thoughtless (ness), inadvertence or error of judgment and that such actions do not constitute heedlessness or reckless disregard of the rights of others within the meaning of the Texas Guest Statute, Article 6701b of the Revised Civil Statutes and that such evidence does not show any conduct in the nature of a continued or persistent course of action; that because of such pleadings and the undisputed and uncontradicted evidence no issue of fact was raised for submission to the jury * * *.' The trial court sustained the motion and entered judgment for the respondent. The judgment recited that the evidence raised no issue of fact and that a directed verdict for the respondent would have been proper. Petitioner then requested the court to file findings of fact and conclusions of law and in response to such request, the trial court, among other findings, found that the accident in question occurred not more than two to three minutes after the petitioner entered the automobile driven by respondent. The trial court concluded as a matter of law that '* * * the Defendant, Roy Lyle Cadwell, was not guility of gross negligence because the evidence does not show any conduct in the nature of a continued or persisiting course of action of sufficient duration as seems to be required by the Appellate Courts of this state, before negligent action becomes gross, as a matter of law.' (Emphasis added). The judgment of the trial court was affirmed by the Court of Civil Appeals, 309 S.W.2d 545.

The court made other findings of fact which are in harmony with the findings of the jury so far as the question of gross negligence is concerned. These findings indicate that the trial court entered the judgment non obstante veredicto primarily on the theory as indicated in the above quoted conclusion of law. The Court of Civil Appeals affirmed the judgment of the trial court holding that our decision in the case of Rogers v. Blake, 150 Tex. 373, 240 S.W.2d 1001, precluded a recovery by the guest in the instant case. There is no authority for the filing of findings of fact and conclusions of law in a case where there has been a jury trial and judgment non obstante veredicto has been entered. See Ditto v. Ditto Investment Company, Tex., 309 S.W.2d 219. Although the findings of fact and conclusions of law have no proper place in the record, they were filed without objection, and are only referred to here for the purpose of illustrating the theory upon which the trial court rendered its judgment non obstante veredicto. Apparently it was the trial court's theory that gross negligence, which was found by the jury to exist, cannot be the basis for the recovery of damages for the reason that the evidence fails to go further and show that the gross conduct was of sufficient duration from the standpoint of time. The findings and conclusions specifically referred to herein seem to indicate that this matter of only a few minutes time elapsing between the moment of petitioner's entry into respondent's automobile and the time of the collision was the determining factor in the trial court's mind in entering the judgment non obstante veredicto. The judgment of the Court of Civil Appeals affirming that of the trial court has for its basis the conclusion as was reached in Rogers v. Blake, supra, that the acts which the jury found as being gross negligence were mere acts of inadvertence and of mistaken judgment, and that there were no facts or circumstances which would justify the inference that the respondent's conduct was grossly negligent. With this conclusion we cannot agree. Our examination of the authorities in this jurisdiction on the question discloses that the courts have been primarily concerned with the quality or kind of conduct established by the evidence in each given case and have adhered to the rule that whether conduct is so far negligent or wanton, reckless or willfully improper as to render one liable under the guest statute depends upon the combination of circumstances present at the particular time and place. In none of the decisions has it been held that the period of time during which negligent conduct existed was the sole criterion for gross negligence. In the case of Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 198, this Court quoted with approval from Blashfield Cyclopedia of Automobile Law and Practice, Volume 4, Part 1, page 393, § 2324:

'Whether an automobile host's conduct is so far negligent or wanton, reckless, or willfully improper as to render him liable to a gratuitous guest, under the prevailing standard of liability, depends in every case upon the combination of circumstances present at the particular time and place. No one or two acts or omissions on the part of the host, no one or two factors from among the conditions then and there present, can be segregated and arbitrarily characterized as necessarily constituting a breach by the host of his duty. Yet typically some one particular act or omission is the central feature of every such traffic accident. It is not of itself determining, but it is still of critical significance.'

The Court on May 21, 1958, in the case of Bernal v. Seitt, Tex., 313 S.W.2d 520, in holding that the facts in that case sustained findings of gross negligence, stated in the course of the opinion that:

'Obviously every instance of gross negligence includes one of ordinary negligence; and here we have circumstances beyond mere speed, failure to keep control and so on, from which the jury might not unreasonably draw the inference of conscious indifference. The undoubted skill and experience of the driver cuts both ways. Although he had reason for self-confidence, as distinguished from callousness, he also had reason to appreciate the danger and to know that even the most skillful drivers have accidents.'

We cited in support of the holding that the findings of gross negligence were supported by the evidence, the cases of Burt v. Lochausen, supra, and Kirkpatrick v. Neal, Tex.Civ.App., 153 S.W.2d 519, 521, writ of error refused want of merit. This latter case is especially a complete justification for the conclusions reached by us in the Bernal case, supra. Furthermore, it is very much like the instant case. The case was tried to a jury upon special issues, and the jury found seven different acts or...