Huffman v. Gray

CourtCourt of Appeals of Tennessee
Writing for the CourtHOWELL
Citation225 S.W.2d 87,32 Tenn.App. 610
Decision Date02 July 1949
PartiesHUFFMAN v. GRAY. 32 Tenn.App. 610, 225 S.W.2d 87

Page 87

225 S.W.2d 87

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

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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.

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[32 TENNAPP 615] 'By Mr. Myers:

'Q. Did you observe whether or not he was looking in the...

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