Henry v. Henson

• Decision Date: 15 July 1943
• Docket Number: No. 5993.,5993.
• Citation: 174 S.W.2d 270
• Parties: HENRY et ux. v. HENSON et ux.
• Court: Texas Court of Appeals

174 S.W.2d 270

HENRY et ux. v. HENSON et ux.

No. 5993.

Court of Civil Appeals of Texas. Texarkana.

July 15, 1943.

Rehearing Denied September 30, 1943.

Appeal from District Court, Bowie County; N. L. Dalby, Judge.

Action by L. T. Henson and wife, Mrs. Beryl Henson, against T. W. Henry and wife, Mrs. Mary Murphy Henry, for injuries sustained by plaintiff Mrs. Beryl Henson while riding in defendant's automobile. From a judgment for plaintiff, defendants appeal.

Reversed and judgment entered for defendant.

Chrestman, Brundidge, Fountain, Elliott & Bateman, of Dallas, for appellants.

Lincoln & Harris, of Texarkana, for appellees.

HALL, Justice.

This cause was instituted by appellees, L. T. Henson and wife, Mrs. Beryl Henson, against appellants, T. W. Henry and wife, Mrs. Mary Murphy Henry, for damages sustained by appellee Mrs. Henson in the wreck of appellants' automobile in which Mrs. Henson was riding. Appellees averred that both Mrs. Henry and Mrs. Henson were members of the Women's Missionary Society of the First Methodist Church of Texarkana, Texas; that appellee Mrs. Henson was president and appellant Mrs. Henry was president-elect of said Society, and as such were elected delegates to represent same at its East Texas District Meeting or Conference to be held at College Station on or about March 28, 1940; that they did attend said district meeting, traveling to and from in appellants' automobile which was driven and operated by appellant Mrs. Henry. It was alleged further that Mrs. Henry and Mrs. Henson each devoted a great deal of their time and energy to the work of the Missionary Society, and, outside of their household duties, such work constitute their principal business; that Mrs. Henson was serving her second term as president of the Society, was thoroughly familiar with its operations and possessed a wide acquaintance among the membership of the Methodist Church and its Societies throughout East Texas. This familiarity and acquaintanceship, it was alleged, was the fruition of Mrs. Henson's attendance upon the numerous other meetings of the Missionary Society and on account of which appellant Mrs. Henry "specially requested that the said Beryl Henson go with her * * * relying upon the said Beryl Henson's superior knowledge and training in helping her, the said Mrs. Mary Murphy Henry in the work * * *." Appellees averred further: "* * * that the said trip from Texarkana to College Station had for its purpose the mutual benefit of plaintiff Beryl Henson and defendant Mary Murphy Henry, and particularly the benefit of defendant Mary Murphy Henry. In this connection plaintiff would show that the principal functions of said Methodist Missionary Society is the stimulation of interest among the members of the Methodist Church in foreign missions and the encouragement among the members of said church to contribute to foreign missions. In order to effect these objects an educational program was essential. That said Women's Missionary Society is the principal agency of said church in conducting said educational program, and in the encouraging of said members to contribute to the foreign mission cause." The trip to the district meeting of the Missionary Society, it was alleged, was beneficial to both Mrs. Henson and Mrs. Henry; that Mrs. Henson during the trip and stay at College Station discussed and explained the details and workings of the Missionary Society and introduced Mrs. Henry to the higher officials and workers in said organization "who should later prove to be of value to her as worker, president, of the local missionary society." It was further alleged that the wreck of Mrs. Henry's car occurred on the return trip about one mile northeast of the city limits of Henderson, Texas, at the end of a long incline on State Highway 43, a black-topped road, at a time when said roadway was wet from a recent rain. It was further averred that appellant Mrs. Henry was negligent in the manner in which she operated her said automobile in the following particulars, each of which furnished a proximate cause of appellee's injury: (1) In operating her automobile at a dangerous and excessive rate of speed on a slippery pavement; (2) in failing to apply the brakes in an effort to stop or slow down the speed of said automobile so as to avoid a crash; (3) in failing to keep a proper lookout to prevent the automobile from skidding on the wet pavement; (4) in failing to keep said automobile under proper control; and (5) in placing her foot on the gas accelerator as the automobile was about to leave the pavement. Negligence was also charged against appellants (a) operating said automobile while it was equipped with defective steering wheel and gears, which defect was unknown to appellees; and (b) lack of inspection of said automobile. Appellees alleged, further, that the negligence charged against appellant Mrs. Henry was gross in nature and rendered her guilty of heedlessness and reckless disregard of the rights of Mrs. Henson, but if not guilty of such degree of negligence, then she was guilty of ordinary negligence. In the alternative, appellees alleged negligence under the doctrine of res ipsa loquitur. It was alleged that Mrs. Henson's right arm was crushed, both her knees injured, injuries to her pelvis and back, and concussion of the brain, all as a direct and proximate result of Mrs. Henry's negligence, and that such injuries were permanent. For these alleged injuries damages were sought in the sum of $32,200.

Appellants answered by special exception to the effect that it appears from the face of appellees' petition that Mrs. Henson was a guest of Mrs. Henry on the occasion in question, without payment for such transportation, and that the accident in question was not intentional on the part of Mrs. Henry nor caused by her heedlessness or reckless disregard of others. Subject to said exception appellants interposed a general denial and alleged further that Mrs. Henson was a guest of Mrs. Henry on the occasion of her transportation in said automobile without payment for such transportation; that appellee Mrs. Henson's injuries were the result of an unavoidable accident; that Mrs. Henson was guilty of contributory negligence in failing to protest to Mrs. Henry, the driver of the automobile and by whom she was seated, in respect to the rate of speed at which said car was being driven; and that Mrs. Henson assumed the risk of being injured by the breaking of the steering apparatus of the automobile.

Trial was to a jury upon special issues. Appellees made motion for judgment based upon verdict of the jury, and appellants made motion for judgment non obstante veredicto. Appellees' motion was granted and judgment entered for her accordingly.

Appellants' points 1 to 8, both inclusive, have reference to their contention that appellee Mrs. Henson was, under both her pleading and proof, a guest of appellant Mrs. Henry and as such her rights are governed by Vernon's Ann.Civ.St. Article 6701b, commonly referred to as the "guest statute." In answer to special issue No. 13, the jury found that appellee Mrs. Henson at the time of the accident was not a guest of appellant Mrs. Henry. The trial judge instructed the jury in connection with this special issue "that a person being transported over the public highways of this state by the owner or operator of a motor vehicle without payment of money or other thing of value for such transportation is a guest of such owner or operator." This record reflects that both Mrs. Henson and Mrs. Henry are active members of First Methodist Church of Texarkana, Texas, and of the Women's Missionary Society of said church; that they are deeply interested and devoted to the work of the church and society. Appellee Mrs. Henson was president of the society and the inference is strong that appellant Mrs. Henry was slated to succeed her in that office. Mrs. Henry was elected a delegate by the missionary society to its district meeting or conference in College Station to be held on or about March 28, 1940. Mrs. Henson by virtue of her official position was also directed by the society to go to said conference. These two parties together with Mrs. McCormick, also a member of said missionary society but not a delegate, attended the conference of the missionary society at College Station, traveling to and from in appellants' automobile. Neither Mrs. Henson nor Mrs. McCormick paid any money to Mrs. Henry for their passage to and from College Station. They entered into no contract with Mrs. Henry by which they agreed to remunerate her for said trip. Before the parties left for the conference there was some discussion whether they would make the trip in Mrs. Henson's or Mrs. Henry's car, but Mrs. Henson's car being equipped with unsafe tires, it was agreed that the parties go in Mrs. Henry's car. The society paid for the gas and oil used on the trip and also for some of the meals of the delegates. Appellee Mrs. Henson testified:

"Q. Did Mrs. Henry urge you to go to that conference? A. She said she would love for me to go, yes, sir;

* * * * *

"Q. Well, what did Mrs. Henry say to you in regard to why she wanted you to go? A. I think we discussed it before we went; Mrs. Henry said she would love for me to go because I knew more of the leaders in the conference than she did. * * *

"Q. Was there anything said about shorthand, you taking shorthand notes? A. I believe there was; I believe Mrs. Henry said she believed that I would get it more in detail, could get more of the meeting in detail by being able to take it in shorthand, the different meetings we attended.

"Q. Was there anything said between you and Mrs. Henry as to how you would attend the different meetings down there? A. I believe that was discussed on the way down there. Of course Mrs. McCormick and Mrs. Henry and I would go to different conference meetings that they had so we could bring more information back to our group.

"Q. Now what...