Parrott v. Garcia

• Decision Date: 29 January 1969
• Docket Number: No. B--998,B--998
• Citation: 436 S.W.2d 897
• Parties: T. E. PARROTT et al., Petitioners, v. Robert GARCIA et al., Respondents.
• Court: Texas Supreme Court

Page 897

436 S.W.2d 897

T. E. PARROTT et al., Petitioners, v. Robert GARCIA et al., Respondents.

No. B--998.

Supreme Court of Texas.

Jan. 29, 1969.

Alvin E. Wiggins and Daylee Wiggins, Beaumont, for petitioners.

Orgain, Bell & Tucker, John G. Tucker, Keith, Mehaffy & Weber, O. J. Weber, Jr., Beaumont, John O. Young, Orange, for respondents.

GREENHILL, Justice.

This suit was brought to recover damages for personal injuries resulting from a 'drag race' on a public highway within the town of Vidor, Texas. As will be developed below, the plaintiff was not one of those driving either of the racing cars, but he participated to some degree in the holding of the race. The defendants were the drivers of the late model passenger cars engaged in the race, one of which struck the plaintiff's car. The trial court entered a summary judgment for the defendants. The Court of Civil Appeals at Beaumont affirmed upon the basis of a statute which prohibits the holding of a race for speed upon a public highway. 428 S.W.2d 476. We affirm.

The facts relevant to this opinion are these: A group of teenagers met at a drive-in restaurant about 9:30 at night. It was determined that there would be a drag race on Railroad Street in Vidor, a part of the State's public highway between Beaumont and Orange, Texas. The race was to be between the defendants Robert Garcia and Jeff Mumford. Tommy Joe Parrott, for whom the suit was brought and who will here be called the plaintiff, followed the defendants to the scene in his car. The plaintiff took other boys to the race. While the plaintiff's memory was very bad as to who proposed and set up the race, he did concede in his deposition that he measured with his car's speedometer the quarter mile to be raced, and he let out one of his passengers to be the flagman at the end of the first race.

Before the first race, the plaintiff drove his car down the course to be driven and parked his car off the highway. The race was then run at speeds estimated between 75 and 85 miles per hour. Thereafter the plaintiff drove to the area of the highway near the finsh. His passenger, who had acted as finish flagman, entered plaintiff's car. It was then determined that the race between Carcia and Mumford would be run again in the opposite direction. So the plaintiff's passenger got out of plaintiff's car to act as starting flagman in the second race. The plaintiff drove down the two-lane highway in front of the cars which were to race, apparently to watch the finish and because he wanted to turn around. He made no arrangements for the racers to wait until he was out of the way. He proceeded at about 30 to 35 miles per hour. Meanwhile, however, the flagman signaled the start of the second quarter mile drag race. The racing cars, again traveling 75 to 85 miles per hour, overtook the plaintiff's car just past the end of the race. The plaintiff had been driving on the right hand side of the highway, but he turned to the left in front of the racing cars to get off the highway. The car of the defendant Garcia, who won the second race, struck the plaintiff's car broadside at the driver's seat.

The plaintiff said he saw in his rear view mirror the lights of the racing cars approaching, but could not estimate their speed. The plaintiff had done some drag racing himself, and he thought he could proceed with safety. He knew the defendants intended to race on the public highway at speeds up to 85 and 90 miles per hour. He was driving a new GTO Pontiac which was capable of outdistancing either of the defendants' cars had he proceeded straight down the highway. He acknowledged that he knew it would be dangerous to be on that highway that night; that it would be dangerous for anyone; and that the cars would be racing toward him in the second race.

There is other testimony from the defendants as to the plaintiff's active participation in setting up and conducting the race; but for purposes of reviewing the summary judgment action, it will be disregarded. A summary judgment is proper if the pleadings, depositions, and admissions on file show that there is no genuine issue as to any material fact. Rule 166--A, Texas Rules of Civil Procedure. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. These and other principles relating to summary judgment procedure are set out in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965).

Article 795 of our Vernon's Ann.Penal Code provides that 'No race or contest for speed between motor vehicles of any kind shall be held upon any public highway.' A fine of up to one hundred dollars is provided. Other articles, all of the Penal Code, define who are principals or accomplices to the offense. Article 65 says that all persons are principals who are guilty of acting together in the commission of an offense. Article 66 provides in part,

'When an offense is actually committed by one or more persons, but others are present, and knowing the unlawful intent, aid by acts or encourage by words * * * those actually engaged in the commission of the unlawful act, * * * such persons so aiding, encouraging or keeping watch are principal offenders.'

Article 69 says,

'Any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act.'

The depositions of the two defendants and of the plaintiff establish without contradiction that the plaintiff knew of the unlawful intent to violate the statute prohibiting the holding of a race on a public highway; he was present when arrangements for the race were made; he voluntarily proceeded to the scene; and he participated at least to the point of marking the quarter mile course and dropping off the flagman for the finish of the first race and the start of the second. The prohibition of the statute is not that of Driving in a race on the public highway; it prohibits the Holding of a race upon a public highway. Under the provisions of the Penal Code set out above, the plaintiff, by his own admission and the undisputed testimony of the defendants, was a principal in the holding of a race in violation of Article 795.

What, then, is the legal effect in a civil suit for damages of the violation by a plaintiff of a criminal statute? The statute itself does not say that civil liability or denial of damages should follow upon the violation of the statute. And this Court has held that not every violation of a criminal statute will result in a declaration by the Court that the violator is guilty of negligence (or contributory negligence) per se. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959).

It was held in Loftis that 'whether the violation of an ordinance or a statute can be held to be negligence as a matter of law depends at least in part on whether a purpose of the ordinance (or statute) was to afford protection against the hazard involved in the particular case.' And in Rudes v. Gottschalk, this Court said that in the usual negligence per se case, 'we are concerned with alleged conduct which would be considered substandard even in the...