Rowan v. Sauls

• Decision Date: 17 July 1953
• Citation: 31 Beeler 573,195 Tenn. 573,260 S.W.2d 880
• Parties: , 195 Tenn. 573 ROWAN v. SAULS. ROWAN v. CONDER.
• Court: Tennessee Supreme Court

Page 880

260 S.W.2d 880

31 Beeler 573, 195 Tenn. 573

ROWAN v.SAULS.

ROWAN v.CONDER.

Supreme Court of Tennessee.

July 17, 1953.

Rehearing Denied Oct. 9, 1953.

George A. McCormick and Joseph C. Rutschman, Jr., Memphis, for plaintiff.

Charles L. Neely and O. W. Wells, Memphis, for defendants.

PREWITT, Justice.

This is a suit resulting from an automobile collision by a Ford car driven by the defendant Flak and a truck, on a four lane highway just east of the city limits of Memphis.

There is no point in stating the facts as to how the accident occurred, or going into the question of negligence of Flak, because that negligence was settled by the verdict of the jury.Verdicts and judgments thereon were entered against Henry Flak and William Albert Rowan in the sum of $7,500 in each case.

The Court of Appeals affirmed the judgment as to William Albert Rowan on the ground that there was substantial evidence to support the verdict based upon the theory that the jury might have inferred from the testimony that William Albert Rowan was negligent in intrusting the automobile to Henry Flak under the existing circumstances.

A brief statement of the facts leading up to the collision will present the question we are called upon to decide.

Mr. Bryant Hawks of Fort Worth, Texas, was getting up a party of young people to visit his summer home at Cashiers, N.C. Miss Mary Jo Armstrong, Henry Flak, Dennis Williams and James Avery were all to go and they asked William Albert Rowan to go with them.All the expenses of the trip were to be borne by Mr. Hawks and Mr. Hawks placed Henry Flak in charge of the trip and gave him the money for the purpose of paying the expenss.Rowan and Williams were in the Ford automobile going from Fort Worth to Memphis and Miss Armstrong, Flak and Avery were all in the other car.When they reached Memphis, they spent the night and the next morning William Albert Rowan went in the car with Miss Armstrong and Dennis Williams and James Avery and Henry Flak went in the Ford with Avery driving.After they had bought gasoline at a station which was only a short distance from the city limits, Miss Armstrong, Rowan and Williams proceeded in Miss Armstrong's car, and at the time they left, Avery was at the driver's seat, he having driven from the hotel in Memphis to the filling station.After their departure, Avery, who was a licensed driver, asked Flak if he wanted to drive and Flak then got behind the wheel and the accident occurred.

Proof showed that Flak had not been in the United States very long, he being a young man twenty-four years of age, very bright, and going to Southwestern University in Texas.He had been a friend of the Hawks boy who had been accidentally killed.Flak had been licensed to drive a car by the State of Texas, having stood his examination and having qualified as such the license from the state merely providing that for a period of six months some experienced driver should be in the car with him when he was driving and, at the expiration of that time, there was no longer that provision in his license.William Albert Rowan did not know there was any limitation at all in Flak's license until after the accident.He knew that Flak had not had a great deal of experience in driving in this country but knew he had a driver's license and thought he was competent, having had experience in driving in Europe.

Flak testified as follows:

'Q.Didn't you have at the time of this accident a limited driver's license?A.Yes, I had.There was a restriction that a licensed driver has to be in front seat.

'Q.Youhad a limited driver's license?A.Restricted. * * *

'Q.Why was it restricted?A.I think * * * I don't know the legal procedure.I think if you want to get your European license transferred to American license they will give you about three months probation as you said.It doesn't matter how good you are or how bad you are, they give you probation and then you can apply for another after you get acquainted with the country and the highways.'

This witness further testified that he had been in this country nine months, that he did not own an automobile but he had one consigned to him in his duties as an officer in Poland and did considerable driving there before coming to the United States.

The Court of Appeals based its inference from the testimony of young Rowan that while Rowan told Avery, the experienced driver, to drive the Ford on leaving Memphis, yet Rowan admitted that he expected Flak to do some of the driving on the remainder of the journey.

It might be observed here that there is no evidence here that any of the parties had partaken of beverages of any sort, nor is there any evidence of any negligent driving on the part of Flak at any time before the accident in question.

Referring again to Flak's testimony, we quote as follows:

'Q.How much experience have you had in driving automobiles in this country since you have been here less than two years ago?A.Very little.I drove in New York about a few times in some friends' car.

'Q.A few times?You mean a half dozen times?A.Six or seven times, very short distances.

'Q.What other driving have you done?A.I drove a car at school a couple of times of my friends at the University, and while I was working in Odessa, Texas, during the summer I drove about twice, I think local driving.

'Q.All told, up until you drove the car in this wreck, you had driven, maybe possibly, a dozen times?A.Yes, that is true. * * *

'Q.Now, Mr. Flak, you are not familiar with the traffic rules that we have over in this country, they are somewhat different?A.There is very little difference.Curve signs are the same, stop signs, etc.

'Q.I believe you testified you did very little driving over there, even in Poland, isn't that correct?A.But I knew the rules.

'Q.Did you know the rules here?A.Yes, sir.'

This brings us to the quite difficult question to be decided in this...