Harbin v. Seale

• Decision Date: 09 December 1970
• Docket Number: No. B--2205,B--2205
• Citation: 461 S.W.2d 591
• Parties: Imogene HARBIN, Petitioner, v. Stephen SEALE, Respondent.
• Court: Texas Supreme Court

Page 591

461 S.W.2d 591

Imogene HARBIN, Petitioner, v. Stephen SEALE, Respondent.

No. B--2205.

Supreme Court of Texas.

Dec. 9, 1970.

McKool, McKool, Jones, Shoemaker & Turley, Windle Turley, Dallas, for petitioner.

Akin, Vial, Hamilton, Koch & Tubb, Fred S. Stradley and Robert H. Frost, Dallas, for respondent.

CALVERT, Chief Justice.

Petitioner, Imogene Harbin, plaintiff in the trial court, sued to recover damages for the death of her son who was killed while riding in the automobile of respondent-defendant Seale. Defendant pleaded the guest statute, Art. 6701b, Vernon's Tex.Civ.Stats., as a defense, but the jury found gross negligence on the part of the defendant, and returned a verdict favorable to plaintiff. The trial court, nevertheless, rendered judgment, notwithstanding the verdict, that the plaintiff take nothing, and the court of civil appeals affirmed. 454 S.W.2d 271. We reverse the judgments of the courts below and render judgment for the plaintiff.

Under Art. 6701b, supra, neither a guest in an automobile nor his wrongful death beneficiaries have a cause of action against the host-driver for damages caused by an accident on a street or highway unless the accident was caused intentionally or by the host's heedlessness or reckless disregard of the rights of others. When, as here, it is undisputed that the host did not intentionally cause the accident, a plaintiff, in order to recover damages from the host, must prove that the accident was caused by the host's heedlessness or reckless disregard of the rights of others; or, in other words, by the host's 'gross negligence.' Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571 (1945). The term 'gross negligence' has been defined as 'that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.' Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888).

On the night in question, defendant Seale had escorted a young lady to a show and had returned her to her home at about 12:30 a.m., after which time he drove his car to a suburban shopping center where he met with two young friends, Jay Harbin and Richard Cox. The three young men, while talking in the parking lot, heard air escaping from a tire on Cox's car. Cox drove the car to a service station and was picked up by Harbin and Seale in Seale's car. The three then rode for about two hours through the residential area of the neighborhood. Seale was driving with Harbin in the front seat and Cox in the back. The fatal accident occurred on a curving street known as Epping Lane in the City of Dallas. After possibly hitting the curb, Seale lost control of the car which struck first a mail box and then a metal light pole with sufficient force to shear off most of the right side of the automobile. Harbin was killed outright.

The jury found in answer to special issues that Seale was negligent in driving his car at an excessive rate of speed, in failing to keep a proper lookout, in failing to turn his vehicle to avoid the collision, and in failing to timely apply his brakes; and found further that each of these acts was a proximate cause of the accident. The jury also found that the driving at an excessive speed constituted gross negligence, which was defined by the court as meaning 'that entire want of care which would raise the belief that the omission complained of was the result of a conscious indifference to the rights or welfare of the person or persons to be affected by it.' Jay Harbin was found to have failed to request respondent to slow the speed of his automobile and to have failed to leave the automobile when given the opportunity to do so, but the jury refused to find that these omissions constituted negligence.

Plaintiff filed a motion for judgment and defendant timely filed his motion for judgment non obstante veredicto. The defendant's motion was granted by the trial court upon the basis, in effect, that there was no evidence to support the submission of, nor the jury's answers to, the special issue on gross negligence. The court of civil appeals has affirmed the judgment on the same ground. The case comes to this court on one point of error complaining of the holding that there is in the record no probative evidence of gross negligence.

The law is clear in this state that before a trial court can render a judgment non obstante veredicto, based on the absence of evidence, it must determine that there is no evidence having probative force upon which the jury could have made the findings relied upon. Whiteman v. Harris, 123 S.W.2d 699 (Tex.Civ.App.--Fort Worth 1938, writ ref'd). In making this determination, all evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in such party's favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952). Thus, the question before this court is whether there is evidence of probative force in the record which supports the jury's finding of gross negligence.

Defendant contends that the only finding of gross negligence in this case is predicated upon his driving at an excessive rate of speed, and that, as a matter of law, excessive speed alone cannot constitute gross negligence. We are not prepared to say that a finding of excessive speed alone will not support a finding of gross negligence; whether a finding of excessive speed alone will support a further finding of gross negligence must depend upon the surrounding facts and circumstances. Indeed, it is hard to imagine any case involving excessive speed alone. As so aptly stated in People v. Nowell, 45 Cal.App.2d Supp. 811, 114 P.2d 81 (Cal.App.1941),

'If we wished to be pedantic we would note that speed is never 'in itself and alone.' Of necessity, when referring to the speed of an automobile, there is involved the highway on which it travels, with its width, surface and the presence or lack of traffic upon it. There is involved, too, the factor of visibility; was the car driven before or after dark? When considered in relation to these matters, mere speed, without other acts, may demonstrate willful misconduct or that the driving is reckless.' 114 P.2d 82.

We have held that in determining whether a given act is so far heedless or wanton as to constitute gross negligence, we must look to the surrounding conditions and circumstances at the time and place the act was committed. Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820 (1958). As the quoted language from People v. Nowell points out, there are a number of things that must be considered in determining whether the act of driving at an excessive rate of speed constitutes gross negligence.

Some twelve cases are cited by the court of civil appeals and the respondent for their position that as a matter of law the excessive speed established in this case cannot constitute gross negligence....