Huffman v. Gray

• Decision Date: 02 July 1949
• Citation: 225 S.W.2d 87,32 Tenn.App. 610
• Parties: HUFFMAN v. GRAY. 32 Tenn.App. 610, 225 S.W.2d 87
• Court: Tennessee Court of Appeals

Page 87

225 S.W.2d 87

HUFFMAN v. GRAY.

32 Tenn.App. 610, 225 S.W.2d 87

Court of Appeals of Tennessee, Middle Section.

July 2, 1949.

Certiorari Denied by Supreme Court Dec. 12, 1949.

[32 TENNAPP 610] Roberts & Roberts, Nashville, for plaintiff in error.

Lawson H. Myers, Fayetteville, Harold Hayes, Lynchburg, for defendant in error.

[32 TENNAPP 611] HOWELL, Judge.

This suit resulted from an automobile accident which happened on August 28, 1947, in Huntsville, Alabama. The plaintiff was a guest in the automobile of the defendant, who was driving the car at the time and they were out riding on a pleasure trip.

The declaration alleged that when they reached the intersection of Meridian and Green Streets in Huntsville, the defendant wilfully, wrongfully, negligently and wantonly drove his automobile across Meridian Street and directly into the path of an oncoming car driven by a city Policeman of Huntsville and that the said Policeman had the right of way on Meridian Street and the defendant without looking or paying any attention to his driving attempted to make a left turn into Green Street. It was further alleged that the plaintiff was sitting on the right hand side of the driver's seat of defendant's car and the police car struck the right front door of defendant's car against which plaintiff was leaning, causing her head to crash into the windshield, cutting a gash in her throat eight inches long, cutting another gash on the left side of her forehead three inches long, another three inch gash in her left arm, all requiring stitches and causing permanent scars on her face and neck. It is further alleged that plaintiff is twenty-three years of age and by reason of the injuries sustained is permanently disfigured, marked and scarred.

The declaration further alleged that the suit accrued under Section 95, Title 36 of the 1940 Code of Alabama, hereinafter set out and alleged that the defendant was guilty of wilful and wanton misconduct in the operation of the automobile and that such operation of the automobile and such misconduct was responsible for her injuries. The defendant filed a plea of not guilty.

[32 TENNAPP 612] Upon the trial before the Court and jury there was a verdict of the jury in favor of the plaintiff for $5,000 which, upon the motion for a new trial, was reduced by the trial Judge to $4,500. The remittitur was accepted by the plaintiff under protest.

By proper procedure the defendant has perfected an appeal in error to this Court and has assigned errors. The assignments of error raise the questions that there is no evidence to support the verdict, that the Court erred in overruling defendant's motion for a directed verdict, and that the verdict as reduced is excessive.

No errors based upon the charge of the Court are assigned, and therefore the questions before this Court are: Is there any evidence to support the verdict and is it excessive.

The Alabama Statute referred to is as follows: 'Liable only for willful or wanton misconduct.--The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'

It was not contended that the defendant was guilty of wilful misconduct, but it is insisted that the accident was the result of the wanton misconduct of the defendant.

The charge of the Court as to wanton misconduct is not excepted to and is in part as follows:

'The driver of the car must be guilty of wanton misconduct and that wanton misconduct must be the proximate[32 TENNAPP 613] cause of the injury, which in our State, and I understand the same thing in Alabama, is substantially defined to be an act or omission which immediately causes or fails to prevent the injury. In other words if the man is guilty of wanton misconduct, and that that wanton misconduct was the proximate cause of the injury. You must find both of those by a preponderance of the proof before the plaintiff can recover.

'Now, addressing yourselves further to this wanton misconduct, because that is the gist of this plaintiff's lawsuit, she realizes she must fail or win by whether or not this driver of this car was guilty of wanton misconduct. The Supreme Court of Alabama says, in defining this, that wanton requires knowledge by the driver of the peril to the guest and of the probable consequences of his conduct, and that with reckless disregard of such consequences he pursued that conduct which proximately caused the death or which proximately caused the injury of the guest.

'It is defined further, 'Before one can be convicted of wantonness, the facts must show that he was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct; that with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. A wilful or intentional act is not involved in wantoness, which may consist of an inadvertent failure to act by a person with knowledge that someone is probably in peril and the act or failure to act is in reckless disregard of the consequences.'

"Wantonness requires knowledge that the plaintiff, or guest, would be subject to danger of being injured [32 TENNAPP 614] as a probable consequence of his conduct, and that with that knowledge, with reckless disregard of such consequences he pursued that conduct which proximately caused the injuries complained of.'

'Now, you take those general definitions and apply them to the facts in this case.'

The record discloses that the defendant was driving his car, the plaintiff being on the seat with him, sitting with her back to the right front door of the car and facing the defendant, and was proceeding South along the right hand lane of traffic on Meridian Street in Huntsville. The street was straight and there was nothing to keep him from seeing the police car approaching from the opposite direction and he, without any warning signal of any kind, suddenly turned out of his lane of traffic and into the left hand side of the street when his car was truck by the police car.

The testimony of the plaintiff in part was:

'Q. When you got up to where this intersection is, tell this jury what happened at that point? A. Well, we were sitting talking and he made a bear to his left and went to his left right in front of the other car.

'Q. He went right in front of ther other car? A. Yes, sir.'

* * *

'Q. I will ask you whether or not Mr. Gray gave any signal at all that he was going to turn off of Meridian Street on that side? A. No, sir, he didn't give a signal at all.

'Q. As a matter of fact, was he paying any attention to his driving? A. No, sir.

'Mr. Roberts: I Except To That.

'The Court: Yes.

[32 TENNAPP 615] 'By Mr. Myers:

'Q. Did you observe whether or not he was looking in the way this policeman was coming? A. No, he wasn't. He was watching me.

'Q. Watching you? A. Yes, sir.

'Q. Which was proper.

'Mr. Roberts: I think his conduct is excusable, under those circumstances, and that question is immaterial and irrelevant.

'Mr. Myers: I think it is very proper.

'Q. When he made that turn you are talking about, you said he made no signal. Did he or not, in making his turn, turn directly in the path of this policeman as he came north? A. He turned right in front of him.

'Q. The policeman was traveling which way, was he traveling in an opposite direction from Mr. Gray? A. He was coming facing--hit us on the right hand side when he turned.

'Q. What I am getting at, the policeman, was he coming towards Fayetteville, north? A. Yes, sir.

'Q. Mr. Gray was traveling towards Huntsville before he made the turn? A. Yes, sir.

Q. He was traveling south? A. Yes. Sir.

'The Court: The policeman was on Meridian.

'Mr. Myers: Yes.

'Q. As you proceeded, as you told the jury, tell what happened, Miss Geneva, relative to the wreck? A. We went to Huntsville, he made the left hand turn, was going to turn off at this street, gave no signal, and wasn't even watching where he was going. The policeman came down Meridian and hit us on the right hand side.

'Q. Was that about where you were sitting. (Indicating.) A. Right where I was sitting.

[32 TENNAPP 616] 'Q. Go ahead and tell what happened. A. It threw me through the windshield, and when it did it cut my neck and they taken 16 stitches in my neck, and it cut my head on the left hand side, and my arm.'

* * *

'Q. Did he make a quick, sharp turn, or did he gradually ease over there and drive over on the left for some piece? A. He just turned right quick.

'Q. Right quick? A. Yes, sir.'

A policeman who was driving the police car which struck defendant's car said in part.

'Q. Did he give any signal for a left hand turn? A. No, sir, I didn't see any.

'Q. If he had given a signal, would there have been anything to have kept you from seeing it? A. No, sir.

'Q. Now, was that a sudden turn that he made there on Green Street, Mr. Norton? A. Yes, sir.

'Q. Turning off Meridian and on to Green, he would make a turn of about what angle, would you say? A. I imagine about 45.

'Q. About what? A. About 45, I imagine.

'Q. Could you avoid hitting him, Mr. Norton? A. No, sir, he was right on me, he just cut right out and he was driving fast.

'Q. He was driving fast? A. Yes sir.

'Q. About how fast would you say he was going? A. I don't know, he must have been driving thirty-five or forty.'

The defendant did not introduce any proof.

As shown no assignments are based upon the charge of the Court.

The trial Judge correctly submitted the issue of wanton negligence to the jury in a charge that was not...