Johnson v. Smither

• Decision Date: 01 April 1938
• Docket Number: No. 13737.,13737.
• Citation: 116 S.W.2d 812
• Parties: JOHNSON v. SMITHER.
• Court: Texas Court of Appeals

116 S.W.2d 812

JOHNSON v. SMITHER.

No. 13737.

Court of Civil Appeals of Texas. Fort Worth.

April 1, 1938.

Rehearing Denied May 6, 1938.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Action by Mrs. Clara E. Smither against Henry Johnson and others, as joint tort-feasors, for injuries sustained in a collision between named defendant's automobile in which plaintiff was riding and another automobile. From a judgment for the plaintiff against named defendant, named defendant appeals.

Affirmed.

Darden, Burleson & Wilson, of Waco, and Nelson Scurlock, of Fort Worth, for appellant.

Martin & Moore, of Fort Worth, for appellee.

BROWN, Justice.

Appellee brought suit against appellant and R. L. and H. G. Johnson for damages for personal injuries growing out of the collision of appellant Henry Johnson's passenger automobile with a truck owned and operated by R. L. and H. G. Johnson. All of such persons were sued as joint tort-feasors.

Appellee had listed for sale or trade a farm which she owned, with the appellant, who is a real estate broker; and the pleadings and proof disclose that she went in appellant's automobile, with appellant, to show him the said farm. The accident occurred on the highway during this trip.

The cause being tried to a jury in answer to special issues submitted, the jury found: (1) That the collision in which appellee was injured was not an unavoidable accident; (2) that appellant was driving his automobile at the rate of 50 miles per hour at the time of the accident; (3) that such rate of speed was negligence; (4) that it was a proximate cause of the collision; (5) that at the time of the collision a portion of appellant's automobile was on the left side of the center of the road; (6) that being in such position was a proximate cause of the collision; (7) that the truck owned by the other Johnsons was being driven 30 miles per hour, at the time of the collision; (8) that such rate of speed was not negligence; (9) that such speed was not a proximate cause of the collision; (10) that the truck was not being driven on the left-hand side of the road (to R. L. Johnson); and fixing the amount of damages at $3,000. To issue 13 the jury found that appellee accompanied appellant on the trip for the purpose of pointing out to appellant the way to her farm.

On the verdict the trial court rendered judgment for appellee against appellant, Henry Johnson, and found in favor of R. L. and H. G. Johnson. Henry Johnson has appealed.

The first assignment of error presents the question of the status of the parties in relation to the provisions of article 6701b Vernon's Ann.Civ.St., commonly known as the Texas Guest Statute.

Appellant contends that the provisions of such statute control because appellee, Mrs. Smither, was his guest and was being transported without paying for her transportation.

We have concluded that under the facts of this case and under what we consider a proper construction of the statute, Mrs. Smither was not a guest.

In the first place we are of opinion that the statute should not be construed in such manner that its provisions will be made to apply in every case where the passenger has not actually compensated, or agreed to compensate, the owner for his transportation.

We do not believe the Legislature of Texas had any such intention in passing the statute. In the emergency clause, Acts 1931, c. 225, the lawmaking body said: "The fact under present law fraud may be perpetrated upon insurers of owners and operators of motor vehicles, creates an emergency, etc." The history of the Texas statute (which follows the Connecticut statute) and other like statutes, is that a serious situation appears to have arisen through mere guests, who were injured in automobile accidents, bringing suits against the owners and operators of such vehicles, where the owners, or operators, carried insurance, and a seeming disposition upon the part of such owners, or operators, to assist the guest in procuring a judgment for the personal injuries sustained. Such judgments in nowise injured the owner or operator but the actual recovery was against the insurance carrier. The various lawmaking bodies were of opinion that the bringing of such suits had become a "racket."

We do not believe that the statute was ever intended to cover cases in which the owner and the so-called guest were engaged in a joint enterprise, or where the owner and so-called guest were making a trip for the mutual benefit of the parties.

As was said by this court in the case of Scott v. Gardner, 106 S.W.2d 1109, writ dismissed, the Court of Civil Appeals in construing a Texas statute enacted by copying the statute of another state must adopt the construction given such statute by the court of last resort of the state whose statute Texas had adopted. Hence, we turn first to the decisions of the court of last resort of Connecticut.

In the case of Bree v. Lamb, 120 Conn. 1, 178 A. 919, the plaintiff and defendant were employees of Sears, Roebuck & Company and were en route to a business meeting at the time of the accident. The defendant was the district manager of such company and the plaintiff a mere subordinate employee. The Connecticut court of last resort said (page 921): "If he is being transported for the mutual benefit of himself and the driver or owner of the car, he is not a guest. The benefit must be a tangible one growing out of definite relationship. * * * It need not be a consideration agreed upon for the transportation."

The case of Russell v. Parlee, 115 Conn. 687, 163 A. 404, grew out of the following facts: Parlee, the defendant, owned a farm which she had purchased from one Grant. She made an arrangement with Grant whereby he remained on the farm and operated it for their mutual benefit. Grant hired Russell to assist him in the work. Parlee went in her car to get Grant and take him to her farm to do certain work. He in turn called Russell, the plaintiff, to go and work with him. Parlee knew that Russell was to work with Grant on her farm. She took them in her automobile, and, on the way the accident occurred in which Russell was injured. The jury found that Russell was not Parlee's guest.

The court said (page 405): "In Kruy v. Smith, 108 Conn. 628, 144 A. 304, the plaintiff was injured while being transported by the defendant in her car to the latter's residence, where she was engaged to work as a laundress. We held that the trial court was not justified in directing a verdict in favor of the defendant on the ground that the plaintiff was a `guest' within the purview of the statute, and said (page 629 of 108 Conn., 144 A. 304, 305): `The Legislature, when it used the word "guest," did not intend to include persons who are being transported for the mutual benefit of both the passenger and the operator or owner of the car, and, in determining whether the transportation was for the mutual benefit of both, not merely the act of transportation must be considered, but also any contract or relationship between the parties to which it was an incident. Whether one is a "guest" must often resolve itself into a question of fact, to be determined by the jury under appropriate instructions from the court.'" In this opinion the court also cites Leete v. Griswold, Post No. 79, American Legion, 114 Conn. 400, 158 A. 919.

Further in the opinion the court said (page 406): "The person transported is not a guest within the meaning of the statute if the transportation is for the mutual benefit of both parties, and in determining whether it was for their mutual benefit the relationship between the parties to which it was an incident may be considered. The relationship must be definite and the benefit tangible, * * * but it is not required that the relationship be such that the benefit accruing is the consideration for transportation agreed upon by the parties. See Loftus v. Pelletier, 223 Mass. 63, 111 N.E. 712; Lyttle v. Monto, 248 Mass. 340, 142 N.E. 795."

The conclusions drawn by the Connecticut court and by us are amply supported by decisions from the appellate courts of California, Iowa, and Michigan, and are cited in appellee's brief, but we feel no necessity for incorporating them in this opinion, Texas having adopted the Connecticut statute.

The jury in the case at bar expressly found that appellee accompanied appellant (the real estate broker whom she had employed for the purpose of trading or selling her farm) "for the purpose of pointing out to him the way to her farm."

Independent of this finding, we think the evidence indisputably establishes the relationship of broker and owner, and that the owner accompanied the broker for the purpose of showing him the way to her farm to the end that the broker might inspect the farm and be in a position to show it to prospective buyers. Undoubtedly the trip was for the mutual benefit of appellant and appellee, and the provisions of the Guest Statute do not apply.

The conclusions reached render it unnecessary for us to discuss the next proposition raised by appellant, wherein he complains of the trial court refusing to give the jury an issue requiring the jury to find that appellee was not obligated to pay appellant for the transportation. There was no error in such refusal.

The next proposition asserts that it was error for the trial...