Patterson v. Tomlinson
| Decision Date | 25 May 1938 |
| Docket Number | No. 8640.,8640. |
| Citation | 118 S.W.2d 645 |
| Parties | PATTERSON v. TOMLINSON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bell County; M. C. Jeffrey, Judge.
Suit by Mary Elizabeth Tomlinson against R. H. Patterson to recover damages for personal injury sustained in an automobile collision between an automobile in which the plaintiff was riding as the guest of J. F. Paul and an automobile owned and driven by the defendant, wherein the defendant by way of cross-action sued J. F. Paul as a joint tort-feasor for contribution, seeking to recover one-half of any damages to plaintiff which were caused by their joint or concurring negligence. From an adverse judgment, the defendant appeals.
Affirmed.
Naman, Howell & Boswell, of Waco, for appellant.
Cox & Brown, of Temple, for appellee.
This appeal arose as follows:
Plaintiff, Mary Elizabeth Tomlinson, sued appellant, R. H. Patterson, to recover personal injury damages sustained in an automobile collision on a public street in the city of Temple, between a car in which she was riding as the guest of J. F. Paul, and a car owned and driven by appellant. She alleged, offered proof tending to show, and the jury found in answer to special issues: (1) that appellant was driving his car on the left side of the street; and (2) that he failed to keep a proper lookout in front of his car; and that each such act was negligence and a proximate cause of plaintiff's injury. The jury found her damages to be $12,500; and judgment was accordingly rendered for her. No appeal was taken from said judgment, and it has been compromised and settled by appellant.
By way of cross-action appellant sued J. F. Paul as joint tort-feasor for contribution, seeking to recover one-half of any damages to plaintiff which were caused by their joint or concurring negligence. The two acts of negligence relied upon as showing Paul to be a joint tort-feasor were: (1) that he was driving his car in excess of 20 miles per hour in violation of Art. 827a, Penal Code, § 8, Vernon's Ann.P.C. art. 827a, § 8; and (2) that while so driving his car he swerved it to the left and attempted to pass in front of the car of appellant. The only evidence on these issues was that Paul was driving his car at about 25 miles per hour immediately before the collision; and that immediately before the collision he swerved his car and attempted to pass in front of appellant's car, which struck the Paul car about its center, pushing it to the curb; and after appellant's car rebounded from the impact, it again went forward and struck the Paul car, such collision causing the injury complained of by plaintiff. At the conclusion of the evidence the trial court instructed a verdict and accordingly rendered judgment in favor of Paul on the cross-action of appellant. This appeal is from the judgment so rendered.
The sole question presented is one of law, and is, where a guest is injured in an automobile collision between the car of her host and that of a third party, each of whose ordinary negligence is a proximate cause of the injury to the guest, may the third party recover contribution of one-half of the damages caused by their joint or concurring ordinary negligence, in view of the provision of Art. 6701b, Vernon's Ann.Civ. Stat., commonly known as the guest statute, which restricts the liability of the host to those injuries to his guest which result from "his heedlessness or his reckless disregard of the rights of others," or from his gross negligence? We have reached the conclusion that the question should be answered in the negative.
There can be no serious question but that the two acts of negligence charged against Paul, the host, in the operation of his car, and the proof thereon, would establish only ordinary negligence. In construing the guest statute many cases hold that while the operation of an automobile in excess of the statutory speed limit is negligence per se, that negligence per se falls within the class of ordinary negligence. Glassman v. Feldman, Tex.Civ.App., 106 S.W.2d 721; Munves v. Buckley, Tex.Civ.App., 70 S.W. 2d 605; Hamilton v. Perry, Tex.Civ.App., ...
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...v. Youngstrom, S.D., 139 N.W.2d 226, 230--231; Mitchell v. Gooch, Tex. Civ.App., 210 S.W.2d 834, 838; and Patterson v. Tomlinson, Tex.Civ.App., 118 S.W.2d 645, 646--647. Without exception the courts in these cases held a host may effectively invoke the state guest statute when sued for cont......
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...far as Strakos was concerned, he cannot be required to contribute to the satisfaction of the judgment against Hubbard. Patterson v. Tomlinson, Tex.Civ.App., 118 S.W.2d 645, error Hubbard, however, complains that he is entitled to be indemnified by Gehring under his pleadings and the answers......
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