Hicks v. Herbert

• Decision Date: 09 March 1938
• Citation: 113 S.W.2d 1197,173 Tenn. 1
• Parties: HICKS v. HERBERT.
• Court: Tennessee Supreme Court

113 S.W.2d 1197

173 Tenn. 1

HICKS v. HERBERT.

Supreme Court of Tennessee.

March 9, 1938

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Action by Buford G. Hicks against W. B. Herbert for injuries sustained while riding as a guest in defendant's automobile. Judgment for the defendant was reversed by the Court of Appeals, and the Supreme Court granted defendant's petition for certiorari.

Judgment of Court of Appeals reversed, judgment of circuit court affirmed, and suit dismissed.

Walker & Hooker, of Nashville, for plaintiff in error.

Trabue Hume & Armistead, of Nashville, for defendant in error.

GREEN Chief Justice.

This is a suit for personal injuries sustained by Hicks in an automobile accident. The car in which Hicks was riding as a guest was being driven by defendant, Herbert, at the time of the accident. The trial judge directed a verdict in favor of the defendant. The Court of Appeals reversed the judgment below and remanded the case, with directions that it be submitted to a jury. This court granted defendant's petition for certiorari.

We have reviewed the facts fully in a memorandum filed, and a detailed statement thereof is not necessary in this opinion. The plaintiff, the defendant, and two others had driven out of Nashville in defendant's car for an afternoon of recreation. They stopped at a hunting lodge for a while and later went to a tea room near Columbia. They left Nashville about 1 o'clock and started back from the tea room about 7. During the afternoon the party had consumed nearly four pints of whisky. Defendant had eaten nothing or, if anything very little.

When the party left the tea room every one present, except plaintiff, testified that defendant was drunk and in no condition to drive an automobile. Plaintiff testified that while defendant was under the influence of liquor to some extent, he (plaintiff) thought defendant capable of safely driving an automobile.

Plaintiff insisted on driving when the party left the tea room over defendant's protest. Defendant protested so strongly that, within a few miles, plaintiff surrendered the wheel to defendant. Defendant at once put the car up to a speed of about 65 miles an hour and, endeavoring to pass a truck, within about 2 miles after he began to drive, defendant ran the car off the road into a pole or post. The car was wrecked, one of the occupants killed, and plaintiff severely injured. It is conceded that defendant was driving negligently and that his negligent driving was the proximate cause of the accident.

The trial judge directed a verdict for defendant on the ground that his intoxication was obvious and that in turning over the wheel to defendant and riding in the car driven by a man in defendant's condition plaintiff was guilty of such contributory negligence as to bar his recovery. This on the authority of Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323, and other decisions of this court.

The Court of Appeals thought the question of the contributory negligence of defendant should have been submitted to the jury. That court was of opinion that plaintiff's testimony that he did not regard defendant as intoxicated constituted material evidence of lack of knowledge of defendant's condition on the part of plaintiff. As we understand the opinion, the Court of Appeals regarded actual knowledge by plaintiff of defendant's intoxication as essential to sustain the defense of contributory negligence.

We think the Court of Appeals took a mistaken view. Plaintiff is not on trial here for homicide. His contributory negligence is not to be determined, as would his plea of self-defense,...