Fly v. Swink

• Decision Date: 20 December 1933
• Citation: 69 S.W.2d 902,17 Tenn.App. 627
• Parties: FLY v. SWINK (two cases).
• Court: Tennessee Court of Appeals

69 S.W.2d 902

17 Tenn.App. 627

FLY v. SWINK (two cases).

Court of Appeals of Tennessee, Western Section.

December 20, 1933

Certiorari Denied by Supreme Court March 31, 1934.

Appeal in Error from Circuit Court, Shelby County; W. B. Rosenfield Special Judge.

Actions by R. B. Swink and by R. B. Swink, administrator of the estate of Myrtle House Swink, deceased, against Frederika Brode Fly, were tried together. To review adverse judgments defendant appeals in error.

Reversed and rendered.

Armstrong McCadden & Allen and Emmett W. Braden, all of Memphis, for plaintiff in error.

Bryan & Maxwell, of Memphis, for defendants in error.

KETCHUM Judge.

These are two suits tried together. In the first or main case, Mrs Swink sued Mrs. Fly for damages for personal injuries sustained in an automobile accident near Temple, Tex., while a guest in Mrs. Fly's automobile. The other suit is by the husband, Mr. Swink, for loss of his wife's services, and medical and hospital fees.

There was a verdict of $4,000 for Mrs. Swink, and $1,000 for Mr. Swink. The circuit judge suggested a remittitur of $1,500 in the former case and one of $500 in the latter, and judgments were entered accordingly. The defendant prosecuted this appeal in the nature of a writ of error. The only error assigned here is the action of the circuit judge in denying her motion for a directed verdict.

In addition to the usual defenses, the defendant pleaded the Texas automobile guest statute (Vernon's Ann. Civ. St. art. 6701b, § 1), which provides that:

"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."

The material facts are as follows:

Mrs. Swink, who was related to Mrs. Fly by marriage, was invited by her to go with her as a guest in her automobile on a visit to relatives in San Antonio, Tex. They left Memphis in Mrs. Fly's Cadillac Imperial sedan on the morning of December 5, 1931. Mrs. Swink, Mrs. Fly, and Mrs. Fly's three year old granddaughter rode on the back seat. The car was driven by Mrs. Fly's colored chauffeur, Louis Becton; and a colored maid, Mary Clark, rode on the front seat with the chauffeur.

The accident occurred on Monday morning, December 7th, at about 9:30 o'clock, at a bridge near Berry's filling station on State Highway No. 81, about four miles north of Temple, Tex. The road was a Tarvia road, practically straight and level at this point; the road was in good condition, but was wet as the result of a drizzling rain.

Approximately 800 feet north of the bridge there was a highway sign "Narrow Bridge." At just about this point the defendant's car passed another car driven by J. E. Temple, which was going in the same direction at a speed of about 45 miles per hour.

The bridge was 15 feet, 2 inches, wide, 32 feet long, and there was a concrete wall 18 inches high on each side. The bridge is 8 feet narrower than the paved highway. There was a wire netting nailed to 4-inch posts, making the approaches to the bridge. This wire fence makes a funnel-shaped approach to the bridge.

After the defendant's car passed the Temple car, it pulled back to the right-hand side of the highway; and as the driver approached the bridge, he observed a car coming from the opposite direction, and believing that there was not sufficient room for the two cars to pass on the bridge, he turned to the right, and ran into the wire fence and the concrete abutment or side wall of the bridge; the force of the blow broke off about 6 feet of the wall and the automobile went over into the ditch about 10 or 12 feet below; three 4-inch posts to which the wire netting was fastened were also knocked or pulled down. As the result of this fall of the automobile, Mrs. Swink received the injuries complained of.

The witnesses fix the speed of the car at about 50 to 55 miles per hour at the time of the accident. Temple says he was driving 45 miles per hour when the Cadillac passed him. The road was wet, but there is no evidence that the car skidded. The witness Temple, who was the only eyewitness, in answer to a question whether there was any sliding or skidding by any of the cars there, answered:

"No, the Cadillac didn't skid into the bridge; it just drove right straight into the bridge; was just too far to the right."

Mrs. Swink, in answer to the question, "Did the car slide into it (the abutment), or how did it hit it?" replied: "It just went right into it." And she testified that "it just seemed to hesitate, and then went on over." A "sudden lurch" of the car first attracted her attention, and she instantly realized that "something was about to happen," and she cried out, "O! Louis, Louis," and tried to catch to something in the car; and then her head struck the windshield between the front and back seats.

In the two days driving after they left Memphis, Mrs. Swink had found no fault with, and had offered no criticism of, the chauffeur's driving.

The Texas "guest" statute was duly proved, as pleaded, as was also the statute fixing the maximum speed limit on Texas highways at 45 miles per hour.

Mrs. Swink died after rendition of the verdict in her case, and the cause was duly revived in the name of her husband as her administrator; and since the cases have been pending in this court the said R. B. Swink has died, and both cases have been revived in the name of Blan R. Maxwell, administrator.

The only question on this appeal is whether the trial judge should have sustained the defendant's motion for a directed verdict. In passing upon that motion it was his duty to consider the evidence in its most favorable aspect for the plaintiff, taking into account every favorable inference that might legitimately be drawn from it; and if there was any dispute as to any material evidence, or any legal doubt, as to the conclusion to be drawn from the whole evidence, then it was his duty to deny the motion, and submit the case to the jury. Tyrus v. Railroad, 114 Tenn. 579, 86 S.W. 1074; Brenizer v. N., C. & St. L. Ry., 156 Tenn. 483, 3 S.W.2d 1053, 8 S.W.2d 1099. And in the foregoing statement of the facts we have, therefore, stated the case as strongly in favor of the plaintiff's theory or contention as the evidence warranted.

At the outset it must be conceded that the defendant's chauffeur was guilty of negligence; there is evidence that he was operating the automobile at a rate of speed in excess of 45 miles per hour, which is the maximum speed limit on the highways in the state of Texas; this was negligence per se; and irrespective of the statute it must be conceded that he was guilty of negligence in running at such a rate of speed on a road with which he was not familiar, and in not keeping a proper lookout ahead. The mere fact that he ran into the wire netting and the abutment of the bridge is proof that he was negligent either in not keeping a proper lookout ahead, or that he did not have his car under proper control.

But liability here is not predicated upon ordinary negligence; under the Texas guest statute which is controlling, the defendant is not liable unless (1) the accident was caused by the intentional act of the owner or operator of the automobile, or (2) unless it was caused by his heedlessness or his reckless disregard of the rights of others.

It is not, and of course cannot be, claimed on this record that this accident was caused by the intentional act of the chauffeur, and the judgment for the plaintiff must be supported, if at all, upon the evidence that her injuries were the proximate result of such conduct of the chauffeur, as could properly be characterized as heedless and in reckless disregard of the safety of the plaintiff and the other passengers in the car. This is, of course, a greater degree of negligence than is required to be proven in ordinary negligence cases.

The Texas guest statute (Vernon's Ann. Civ. St. art. 6701b) has not been construed in any Texas case. This statute, however, is a copy of the Connecticut statute (Gen. St. Conn. 1930, § 1628) which has served as a model, both as to form and as to the interpretation given it, for subsequent legislation in other states.

In the leading case in Connecticut, Silver v. Silver, 108 Conn. 371, 143 A. 240, 242, 65 A. L. R. 943; Id., 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, 65 A. L. R. 939 and 943, the constitutionality of this statute was upheld. In that case the defendant was driving his car in congested traffic at a speed of 15 to 20 miles per hour; his son, on the rear seat, called to him to look at some horses which were being ridden on a vacant lot on the side of the road; and while his attention was so diverted for the moment, he ran into a car which had been proceeding about 15 feet ahead of him, as a result of which the plaintiff, who was a guest in the car, received the injuries complained of. The trial court directed a verdict for the defendant, and this was upheld; the court saying:

"The language of the statute indicates an intention to limit such liability to two classes of cases: First, when the accident was caused by intentional misconduct; and, second, when it was caused by heedless or reckless disregard of the rights of others, meaning thereby something more than the mere failure to exercise the care of a reasonably prudent man which is the familiar definition of negligence."

In Ascher v. H. E. Friedman, Inc., 110 Conn. 1, 147 A 263, 264, the plaintiff was a...