Perry v. Harrod, 8041
| Decision Date | 16 February 1970 |
| Docket Number | No. 8041,8041 |
| Citation | 451 S.W.2d 821 |
| Parties | Marilyn PERRY et al., Appellants, v. Gary HARROD, Appellee. |
| Court | Texas Court of Appeals |
A. W. Salyars, Lubbock, for appellants.
John E. Vickers, Lubbock, for appellee.
This suit was brought by appellants Marilyn Perry Brown and her father, O. L. Perry, against appellee, Gary Harrod, to recover damages resulting from personal injuries sustained by Marilyn Perry Brown, then Marilyn Perry, in Lubbock County, Texas, on or about March 18, 1966, when an automobile being driven by appellee, and in which Marilyn Perry was riding, overturned and Marilyn Perry was thrown out of the automobile and injured. At the time of sustaining such injuries, Marilyn Perry was a minor, and this suit was brought by her through her father, O. L. Perry, as next friend, to recover her damages from such personal injuries, and by O. L. Perry individually to recover past and future medical expenses for treatment of such injuries to Marilyn Perry during her minority.
Appellee filed his motion for summary judgment in his favor, on the basis that at the time of sustaining such injuries Marilyn Perry was a 'guest' in his automobile, that Marilyn Perry had failed to prove gross negligence on the part of appellee, and that therefore he was not liable for injuries and damages sustained by her.
The trial court granted such motion for summary judgment, and on August 19, 1969, entered judgment that appellants take nothing by their suit against appellee. From that judgment appellants perfected this appeal. Since this case involves the issue of whether Marilyn was the guest of Gary, Marilyn will be referred to as appellant and Gary as appellee.
Appellant presents this appeal upon eleven points of error but presents all of them under one argument contending the trial court erred in granting summary judgment for appellee because appellant was not a guest in appellee's vehicle; that the appellee admitted acts and omissions constituting ordinary negligence and appellant was entitled to a trial on the question of proximate cause and damage; that the pleadings and depositions raise the question of gross negligence; that the Guest Statute, Vernon's Ann.Civ.St. article 6701b is unconstitutional.
It has been held that Article 6701b is constitutional. Campbell v . Paschall, 132 Tex. 226, 121 S.W.2d 593; Elkins v. Foster, Tex.Civ.App., 101 S.W.2d 294 (writ dism'd). We overrule appellants' contention that Article 6701b is unconstitutional.
The sole issue to be determined herein is whether the trial court erred in granting summary judgment and thereby holding that Marilyn was a guest of appellee, and that appellee was not guilty of gross negligence. Article 6701b provides as follows:
'No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.'
There is no contention that the accident was intentional on the part of appellee, and if Marilyn was a guest of Gary, the issue would be whether Gary acted in a heedless or reckless disregard for the rights of Marilyn. In connection with the motion for summary judgment, the depositions of Gary and Marilyn were taken. There are no material differences in their testimony as to what happened and both of them should be complimented on their testimony as to what happened. It is admitted that at the time and place of sustaining the injuries Marilyn was the invited date of appellee; that appellee had picked her up at her home between 7:00 and 7:30 that evening for such date; that they went to a movie and after leaving the movie went to eat and then went on an automobile drive, and they were on such automobile drive when the car overturned and Marilyn was thrown from the car and injured. At the time of the accident, they were on their way back to Lubbock from Petersburg when they came to a 'Y' intersection. The right segment of the 'Y' led to Lubbock and the left segment led to Ralls. Appellee took the left segment and had gone a short distance when appellant called appellee's attention that he took the wrong side of the 'Y'. In attempting to get back on the right segment, he turned to the right to go over to the right segment and ran into gravel and slid and finally crossed the right segment of...
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Tisko v. Harrison
...statute has been upheld in three cases. Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593 (1938); Perry v. Harrod, 451 S.W.2d 821 (Tex.Civ.App., Amarillo, 1970, writ ref'd n.r.e.); Elkins v. Foster, 101 S.W.2d 294 (Tex.Civ.App., Amarillo, 1937, writ dism'd). None of the opinions cited spec......
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...conferring any benefit upon the driver of the motor vehicle other than the mere pleasure of his company. Perry v. Harrod, 451 S.W.2d 821 (Tex.Civ.App.-Amarillo 1970, writ ref'd n.r.e.); see also Walker v. Bounds, 510 S.W.2d 392, 394 (Tex.Civ.App.-Corpus Christi 1974, no writ). We cannot con......
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