Powell v. Hartford Acc. & Indem. Co.

• Decision Date: 14 January 1966
• Citation: 21 McCanless 503,398 S.W.2d 727,217 Tenn. 503
• Parties: , 217 Tenn. 503 Larry Jim POWELL, by next friend, and Natural Guardian, F. A. Powell, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, and B. G. Davis, Respondents. F. A. POWELL, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, and B. G. Davis, Respondents.
• Court: Tennessee Supreme Court

Page 727

398 S.W.2d 727

21 McCanless 503, 217 Tenn. 503

Larry Jim POWELL, by next friend, and Natural Guardian, F.

A. Powell, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, and B. G. Davis,

Respondents.

F. A. POWELL, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, and B. G. Davis, Respondents.

Supreme Court of Tennessee.

Jan. 14, 1966.

Hewitt P. Tomlin, Jr., and Schneider & Schneider, Jackson, for petitioners.

John S. Porter and Joel Porter, Memphis, and Carmack Murchison, Jackson, for respondents.

WHITE, Justice.

The petitioners, Larry Jim Powell, by next friend and father, F. A. Powell, and F. A. Powell, individually, have assigned for error the action of the Court of Appeals in affirming the judgment of the trial court in favor of the defendants, respondents herein. We have granted certiorari and the cases have been argued at the Bar of this Court.

It is necessary to recite a short history of these cases to form a basis upon which a decision may be made with clarity and understanding. They grow out of an accident occurring on November 1, 1961, in Madison County, Tennessee. Larry Jim Powell was fourteen years and three months of age at the time of the accident and was at that time riding a motor bike, or motor scooter, which collided with an automobile owned and operated by the defendants. Upon the facts the jury returned a verdict for the defendants in the case of the minor Larry Jim Powell, and also in the case of his father, who sued for loss of his son's services and for medical expenses incurred in the proper treatment of his injuries.

In his charge the trial judge instructed the jury, with respect to the minor plaintiff's duty of care, viz.:

I charge you that a minor child, engaged in the operation of a motor vehicle upon the public roads and highways, is chargeable with the same degree of care as an adult person.

The trial judge refused the plaintiffs' special request to instruct the jury as follows:

Ladies and Gentlemen of the Jury, I charge you that under the laws of this State a minor, whether in the act of operating a motor scooter or what, or some other act, is not to be held to the same degree of care in said operation as an adult of or over twenty-one years of age would be. Rather, under the laws of this State, the standard of care by which to measure the conduct of a minor, as regards the question of contributory negligence, is that degree of care ordinarily exercised by one of the same age, discretion, knowledge and experience under the same or similar circumstances.

The duty of care of the minor plaintiff given by the court and the special request refused to be given by the court, as aforesaid, are assigned for error and they present the pivotal problem for decision here and will be discussed together. The Court of Appeals approved the instruction set out first above and approved also the refusal of the court to grant the special request aforesaid, for the reason that it believed the 'Uniform Motor Vehicle Operators and Chauffeurs License Law' of Tennessee imposes upon every person licensed thereunder the duty to exercise ordinary care in the operation of motor vehicles upon the highways of the State.

T.C.A. Sec. 59-707 provides that every applicant for an operator's or chauffeur's license shall be examined as to eyesight, 'his ability to read and understand highway signs regulating, warning, and directing traffic,' and such test shall include an examination of

* * * his knowledge of the traffic laws of this state, and shall include an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle.

The minor plaintiff, Larry Jim Powell, being between the ages of fourteen and sixteen years, was issued a special restricted license, or permit, under T.C.A. Sec. 59-704(g), to operate a motor driven cycle and when the license was so obtained he demonstrated his 'ability to exercise ordinary and reasonable control' of a motor driven cycle, and at the time of the accident involved herein, he was operating said motor driven cycle within the geographic area permitted by such license.

If Powell had been driving the cycle absent the license, then he would have been doing so in violation of T.C.A. Sec. 59-704, which provides:

No person, except those hereinafter expressly exempted [not involved here], shall drive any motor vehicle upon a highway in this state unless such person has a valid license as an operator or chauffeur * * *.

The instant case is one of first impression in this State. Other states have passed upon the problem of the standard of care required of a minor in the operation of a motor driven vehicle. There is divided authority on the question. Most of those which hold that a minor is not onerated with adult duty of care in the operation of an automobile, are based upon the reasoning set out in the New Hampshire case, decided in 1931, of Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 73 A.L.R. 1266. We believe the better reasoned cases place the same duty of care upon all operators of motor driven vehicles, regardless of age, that is, ordinary care. The cases which so hold are Harrelson v. Whitehead, 236 Ark. 325, 365 S.W.2d 868 (1963); Wilson v. Shumate, 296 S.W.2d 72 (Mo.1956); Wagner v. Shanks, 194 A.2d 701 (Del.1963); Allen v. Ellis, 191 Kan. 311, 380 P.2d 408 (1963); and Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 97 A.L.R.2d 866 (1961). Some of these cases reach the decision that such minor is chargeable with the duty of adult care on the basis of licensing statutes, while the Dellwo case reached the decision on the basis of reason only.

In Wagner v. Shanks, supra, decided September 12, 1963, the court said:

The Delaware statute, which permits the licensing of minors, does not provide two standards of care for the licensing of minors and adults.

* * *

* * *

We consider it to be a matter of paramount public policy, in fact a rule of necessity, that society in general be assured that all drivers of motor vehicles upon our highways be charged with equal responsibility in the operation of motor vehicles regardless of age, or any other physical or mental disparity which may exist.

The case of Nielsen v. Brown, 232 Or. 426, 374 P.2d 896 (1962), was cited for authority for this statement in addition to those cases referred to above. The court in Wagner then concluded that a minor would be held to the same standard of care when operating a motor vehicle upon the highways of that state as required of an adult motorist under similar circumstances.

In the case of Dawson v. Hoffmann, 43 Ill.App.2d 17, 192 N.E.2d 695, decided September 12, 1963, it was said that a minor must be held to the same standard of care as an adult with respect to the operation of a motor vehicle, and cited an earlier opinion of that same court of Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342 (1962), and concluded:

Minors are entitled under the law to be judged by standards commensurate with their age, experience and wisdom when engaged in activities appropriate to their age, experience and wisdom, but it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standard of care and conduct than that expected of all others. The law will not countenance the adoption of a double standard of care to be exercised by the drivers of motor vehicles.

We are thus confronted with determining the standard of care required of a minor in the operation of a motor vehicle upon the highways of this State under the rules of reason and also under the statutes aforesaid, and those referred to hereafter.

Tennessee is a common law state, and so much of the common law as has not been abrogated or repealed by statute is in full force and effect. Cogburn v. State, 198 Tenn. 431, 434, 281 S.W.2d 38 (1955); Rush v. Great American Insurance Co., 213 Tenn. 506, 516, 376 S.W.2d 454 (1964).

The rule of reason is one of the bases of the common law and it is also founded on usages, habits and customs and will never be entirely statutory, but will be modified and extended by analogy, construction and custom so as to embrace new relations springing up from time to time to conform with the change and desire of society. Jacob v. State, 22 Tenn. 493 (1842).

It is universally conceded that the fundamental principles of the common law are unchangeable; yet, the courts recognize the necessity of flexibility in the application of old rules to new cases. Box v. Lanier, 112 Tenn. 393, 407, 79 S.W. 1042, 64 L.R.A. 458 (1903).

Flexibility has been necessary since the courts applied the same rule of negligence to one who drove an oxcart, to one who drove a buggy or a wagon, to another who drove an automobile, and to one who pilots an airplane. In each of the situations referred to, the common law requires man to so conduct himself in the operation of the vehicle under his control as not to injure another through his negligence or carelessness. What application may be made of this accepted principle of the common law to future travel, mind of man cannot imagine.

It is a well known contemporary fact that the number of motor driven vehicles on the highways of this State has increased tremendously within recent years.

In 1945 there were only 472,407 registered motor vehicles of all types in Tennessee. According to the figures of the Motor Vehicle Registration Division of the Department of Revenue of the State of Tennessee, of which we take judicial notice (State ex rel. Schmittou v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874 (1961)), there has been an increased registration of three times or more, and as of February 29, 1964, there were 1,535,989 registered vehicles. Of this number, there were 14,321 motorcycles which included within its general category two-wheeled cycles, two-wheeled motor bikes, two-wheeled motor scooters, and three-wheeled motor driven cycles.

There is not available to us the...