Lea v. Gentry

• Decision Date: 14 July 1934
• Citation: 73 S.W.2d 170
• Parties: LEA et al. v. GENTRY (two cases).
• Court: Tennessee Supreme Court

73 S.W.2d 170

LEA et al. v. GENTRY (two cases).

Supreme Court of Tennessee.

July 14, 1934.

Certiorari to Court of Appeals on Error to Circuit Court, Davidson County; A. G. Rutherford, Judge.

Suits by Raymond L. Gentry, by next friend, and by Richard Gentry against Percy W. Lea and another. To review the judgments of the Court of Appeals affirming the judgments of the trial court, defendants bring certiorari.

Affirmed.

Albert A. White and Lawrence B. Howard, both of Nashville, for plaintiffs in error.

Jordan Stokes, of Nashville, for defendant in error.

CHAMBLISS, Justice.

These two suits, tried together, were brought to recover for personal injuries to Raymond Gentry, a 16 year old boy, received in an automobile accident. The minor was awarded $3,000, and his father, for medical expenses and loss of service, $2,000. The Court of Appeals affirmed the judgments. Petition for certiorari was granted by this court and argument heard. The Court of Appeals thus states the pertinent facts:

"On August 13, 1931, Col. Luke Lea, Sr. and Luke Lea, Jr., were on trial in the court at Asheville, N. C. During the afternoon Col. Lea telephoned his son, the defendant, Percy W. Lea, at Nashville, and requested him to send to him, in Asheville, certain papers to be used in the trial, and stated that it was important to have the papers at the convening of court the next morning. Percy W. Lea was a young man of the age of twenty-three years.

"At this time Col. Luke Lea was president of the Tennessee Publishing Company, Luke Lea, Jr., vice president and general manager, and Percy W. Lea, vice president. A Miss Haggerty was secretary to Luke Lea, Jr. During the absence of Luke Lea, Jr., she acted as secretary to Percy W. Lea. However, the papers were the personal affairs of Col. Luke Lea and Luke Lea, Jr., and had no connection with the corporation.

"Percy W. Lea instructed Miss Haggerty to get the papers up for him and get somebody to take them to Asheville, driving his (Percy Lea's) car. Miss Haggerty made arrangements with H. B. Crump, an employee of the Publishing Company, a man of thirty years of age, to take the papers. It was suggested by somebody that he get somebody to accompany him.

"Crump called Percy Lea on the telephone and asked if it would be all right for him to ask Raymond Gentry to go with him, and Lea said that it would. Nothing was said to Percy Lea about young Gentry's doing any part of the driving, and in fact there was no agreement about it. Crump invited young Gentry, aged sixteen years, to accompany him, and told him the trip would not cost him anything. The expenses of the trip were paid out of Col. Lea's account.

"Crump and young Gentry left Nashville at about eight o'clock in the evening. The distance from Nashville to Asheville, N. C., is about 335 miles, so it was necessary to drive all night. They alternated in driving. They reached Asheville at about seven or eight o'clock in the morning and went to the house occupied by Col. Lea, delivered the papers and were shown to their rooms. After breakfast they went to the Court House and listened to the trial until lunch time. After lunch, at about one or one thirty P. M., they went to their rooms in the Lea home. Crump went to bed and probably slept a short while, but Gentry did not go to sleep. They were occupying adjoining rooms and talked to each other while they were lying down resting.

"They left Asheville at about 3 P. M. that afternoon, which would be 2 o'clock by Nashville time. Col. Lea gave Crump some papers and told him to deliver them at the Internal Revenue office in the Custom House in Nashville before 12 o'clock the next day (Saturday).

"At about eight o'clock they reached Knox ville. Gentry suggested that they spend the night there, but it was decided to drive on to Nashville. They began a system of one driving while the other slept. It was agreed that when one driver became sleepy he would wake up the other and let him take the wheel and drive.

"At McMinnville Crump took the wheel to drive and Gentry went to sleep. It was then about 12 o'clock. Crump had slept about an hour while Gentry drove. Crump says he was very sleepy when he began to drive and `faintly' remembers McMinnville. The only thing he can recall about the trip from McMinnville to Woodbury was his intention to get some coffee in Woodbury to keep him awake. When he reached Woodbury there were no restaurants or other places open where he could get coffee. He decided to go on to Murfreesboro. He continued to drive, leaving Gentry asleep. He cannot recall anything that happened after he left Woodbury until the accident. About five miles west of Woodbury he was asleep and the car left the highway, ran over a little embankment and into a tree at the side of the road. The road at this point is a good, level road, and it was about one o'clock at night.

"As a result of the collision Raymond Gentry received serious and permanent injuries in and about his face and eyes. His face was driven with much force against some object in the car which crushed some of the bones in his nose, jaws and about the orbit of his eyes, which caused his teeth to fail to occlude, impaired his eyesight and marred his facial appearance."

The question we conceive to be most seriously pressed on the petition to this court, and deserving of chief consideration, is with respect to the alleged contributory negligence of Gentry, or his assumption of risk, in voluntarily going to sleep under the circumstances and thus rendering himself incapable of giving heed to his own safety, particularly in view of his knowledge of the necessarily impaired physical vitality of the driver by loss of sleep.

We have no Tennessee decision passing on the question of contributory negligence of a guest in falling asleep in an automobile. Our case perhaps most nearly analogous on its facts is that of Schwartz v. Johnson, 152 Tenn. 586, 280 S. W. 32, 47 A. L. R. 323, in which the plaintiff was denied a recovery as a matter of law when the undisputed evidence showed that he had entered a car to ride with a driver known by him to be drunk.

Counsel for petitioner rely on the holding in that case to sustain the contention that contributory negligence, or assumption of risk, should be adjudged against plaintiff below as a matter of law.

A determinative distinction appears in this: In the case relied on, the proof showed that the guest was fully conscious that the driver with whom he was riding was intoxicated. The plaintiff entered the car knowing that it was to be operated by a drunken driver. It was his undisputed knowledge, actual consciousness, of this situation of peril which bound and condemned him, and which eliminated all issue of fact and called for the judgment of the court on the question of law. Here the proof does not show a consciousness on the part of Gentry, a knowledge on his part, with a consequent recognition of the peril, that the driver was or would be asleep. On the contrary, the evidence indicates that Gentry allowed himself to fall asleep with the understanding and in the contemplation that when and while he slept the driver, Crump, would stay awake. It was while awake that he was to drive. If and when necessary for him to sleep, an exchange would be made, and Gentry would be called upon to take the wheel. The arrangement contemplated provision against the contingency of peril incident to the driving of the car by either of the occupants when incapacitated by sleep.

It is plausibly argued, however, that the circumstances of the double trip as a whole — distance, time, loss of sleep, continued physical strain — were such as to have charged Gentry with knowledge of the probability of this particular peril, of the likelihood that his companion would fall asleep at the wheel, just as he appears to have done, and that he should be held accountable for contributory negligence, or assumption of risk, because of what he should, with this knowledge, have reasonably anticipated. This is the proposition presented in this petition which has invoked most earnest consideration. However, just here lies the dividing line between what is for the court and what is for the jury to determine. As already suggested, the principle applied in Schwartz v. Johnson, supra, was that, when knowledge of the fact that the driver is intoxicated or otherwise incapacitated is indisputably shown to have been brought home to the guest, when there can be no dispute as to his consciousness of the peril inherent in such a situation, then a question of law only remains, and the question is one for the court. But, when actual consciousness of the peril is denied by the guest, when to convict him of knowledge of, and therefore acquiescence in, the disqualification of the driver at the time, surrounding facts, and circumstances must be considered, and their determinative weight passed on, when an issue as to...