Hamilton v. Peoples

• Decision Date: 17 September 1954
• Citation: 274 S.W.2d 630,38 Tenn. App. 385
• Parties: Mrs. Elsie Richardson HAMILTON v. Lon E. PEOPLES.
• Court: Tennessee Court of Appeals

Page 630

274 S.W.2d 630

38 Tenn.App. 385

Mrs. Elsie Richardson HAMILTON v.Lon E. PEOPLES.

Court of Appeals of Tennessee, Eastern Section.

Sept. 17, 1954 Certiorari Denied by Supreme Court Dec. 16, 1954.

Shull & Wall, Elizabethton, for plaintiff in error.

Roy C. Nelson, John L. Bowers, Jr., and Banks, Street & Banks, Elizabethton, for defendant in error.

HOWARD, Judge.

This is an action for damages for the death of plaintiff's husband, Charlie Hamilton, age 61, who was killed in an automobile collision which occurred in the intersection of highways 50 and 700 just west of the town of Brooksville, in Hernando County, in the State of Florida, on November 24, 1952, at about 7:15 P.M. Highway 700, an arterial highway, runs north and south, and highway 50, on which the defendant's car was traveling in an eastwardly direction, runs east and west, and for a considerable distance before reaching the intersection this highway is straight with nothing to obstruct a driver's view.The other automobile involved was traveling on highway 700, in a southerly direction, and the estimated speed of each car was 50 miles per hour.The weather was clear and dry.Riding with the defendant at the time were the decedent and two others, Luther Chambers and Horace Treadway, all residents of Carter County, Tennessee.The four were friends of long standing, and had previously gone to Florida for a short vacation, staying at the decedent's cottage near Hernando.Before leaving home, they each contributed $25 to a general fund to defray the expenses of the trip, and in addition thereto the defendant agreed to use his car for transportation.On the date of the accident, the party was returning to Hernando from Tarpon Springs where they had been deep sea fishing, and were traveling over highway 50.Before leaving Tarpon Springs the decedent had suggested that they return by this highway, which was unfamiliar to the defendant but well known to the decedent, who at the time declined the defendant's request to drive, stating that he had rather not but that he would direct the defendant how to go.

It was admitted that several signs had been erected on highway 50 to warn approaching drivers of the intersection.About 200 yards west of the intersection, there was a 'Slow Dangerous Intersection' sign about 6 feet high.Between this sign and within 100 yards of the intersection there was another 'Junction of Routes' sign, and there was the usual 'Stop' sign at the entrance of the intersection.All of these signs were plainly visible.On entering the intersection, where the defendant was directed by the decedent to turn right, the south bound car smashed head-on into the left side of defendant's car, and Hamilton, who was riding in the front seat with the defendant, was killed instantly.Defendant stated he did not know whether he stopped before he entered the intersection or not, as he was knocked unconscious by the force of the impact and remained in this condition for about two weeks.

Plaintiff's declaration alleges (1) common law negligence; (2) statutory and gross negligence, and (3) unlawful and wanton misconduct on the part of the defendant, and it was conceded that the rights and liabilities of the parties were controlled by the substantive law of the State of Florida, being Section 320.59 of the Florida Statutes.Vol. 1, 1941, F.S.A., which reads as follows:

'No person transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such gross negligence or willful and wanton misconduct was the proximate cause of the injury, death or loss for which the action is brought; provided, that the question or issue of negligence, gross negligence, and willful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury; provided that nothing in this section shall apply to school children or other students being transported to or from schools or places of learning in this state.'

The trial resulted in a jury verdict for the defendant, and on the overruling of the plaintiff's motion for a new trial, this appeal was granted and perfected and three errors have been assigned, (1) no evidence to support the verdict, (2)the trial court committed error in his charge, and (3)the trial court erred in refusing to charge plaintiff's RequestNo. 10.

It is insisted on behalf of the plaintiff that because the decedent contributed equally with the defendant and other occupants of the automobile toward the payment of the expenses of the trip on which the accident occurred, including automotive expenses, and because he furnished his cottage for use of all of the occupants of the car during their sojourn in Florida, the deceased was not a guest within the meaning of the Florida statute quoted above, but was a paying passenger.There is no merit in this contention.The fact that one riding in an automobile operated by another contributes toward or pays all of the expenses incident to the trip does not constitute such person a paying passenger and remove him from the status of a 'guest' within the meaning of the Florida Guest Statute.Yokom v. Rodriguez, Fla., 41 So.2d 446;5 Am.Jur., Sec. 501, p. 787.

The terms 'gross negligence' and 'willful and wanton misconduct' as used in the Florida Guest Statute quoted above are held by the Florida courts to be synonymous, and are held to be descriptive of a degree of negligence 'evidencing a reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; or such an entire want of care as would raise the presumption of a conscious indifference to consequences, or which shows such wantonness or recklessness or such grossly careless disregard of the rights and safety of others as may be equivalent to an intentional violation of them.'Burch v. Burr, 157 Fla. 378, 25 So.2d 870, 876.

In Nelson v. McMillan, 1942, 151 Fla. 847, 10 So.2d 565the plaintiff was riding as a guest on the front seat of an automobile operated by the defendant.The plaintiff was injured when the defendant entered and undertook to cross an arterial highway without stopping and was struck by an automobile being operated on the arterial highway.The defendant testified at the trial that he saw the stop sign posted at the intersection and reduced his speed but did not stop because he did not see the approach of the automobile which struck him.At the first trial of the case the jury returned a verdict for the plaintiff and upon the defendant's motion the Trial Judge granted a new trial, it being his opinion that the evidence was not sufficient to sustain a finding of gross negligence or wilful or wanton misconduct on the part of the defendant.The granting of the new trial was affirmed by the Supreme Court although that Court stated that it was of the opinion that some of the evidence tended to support such a finding.SeeMcMillan v. Nelson, 149 Fla. 334, 336, 5 So.2d 867.At the second trial the jury again returned a verdict for the plaintiff.The Trial Judge overruled the defendant's motion for a new trial and the Supreme Court affirmed the judgment for the plaintiff.

In the present case the evidence is not so strong as that in the case of Nelson v. McMillan, supra.In the instant case it does not appear that the defendant saw any stop sign or knew that he was approaching or entering an arterial highway.On the contrary, it appears from the undisputed evidence that the defendant was entirely unfamiliar with the road on which he was...