Schiller v. Rice

• Decision Date: 20 February 1952
• Docket Number: No. A-3328,A-3328
• Citation: 151 Tex. 116,246 S.W.2d 607
• Parties: SCHILLER et al. v. RICE.
• Court: Texas Supreme Court

Page 607

246 S.W.2d 607

151 Tex. 116

SCHILLER et al. v. RICE.

No. A-3328.

Supreme Court of Texas.

Feb. 20, 1952.

Rehearing Denied March 26, 1952.

J. Hart Willis and Curtis White, Dallas, for petitioner-respondent, White.

Burford, Ryburn, Hincks & Ford, Logan Ford and Clarence A. Guittard, Dallas, for respondents-petitioners, Schiller et al.

CALVERT, Justice.

Based upon answers of the jury to certain of fifty-eight special issues, Mrs. Less Schiller and Miss Mozelle King, whose rights are largely governed by the provisions of Article 6701b, Vernon's Ann.Civ.St., the guest statute, and its proper interpretation, each recovered judgment in the trial court of damages for personal injuries against Paul Rice. On appeal to the Court of Civil Appeals at Dallas Rice assigned sixty-six points of error, sixty-three of which were overruled by that Court, two of which were sustained and one of which was left undecided. Having concluded that the trial court erred in two respects, the Court of Civil Appeals reversed the judgment of the trial court and remanded the case to that court for retrial. 241 S.W.2d 330.

Both parties filed applications for writ of error. The application filed by Mrs. Schiller and Miss King contained three points of error, all directed at the action of the Court of Civil Appeals in sustaining Rice's two assignments in that court. Their application was granted on the first two points. Rice's application for writ of error contained thirty points of error, all directed at the action of the Court of Civil Appeals in overruling that number of his assignments before that court. Rice's application was granted because of the granting of the Schiller-King application.

The points of error on which the application of Mrs. Schiller and Miss King was granted are, in substance, that the Court of Civil Appeals erred (1) in holding the trial court's definition of 'heedless and reckless disregard of the rights of others' to be erroneous, and (2) in holding that a mistrial should have been declared when plaintiff's counsel, in examining one of his clients as to the circumstances surrounding the signing of a certain written statement, inquired if the statement was written by an 'adjuster.' In view of the fact that we have concluded that the Court of Civil Appeals should have reversed the judgment of the trial court and rendered judgment for the defendant on another ground, it becomes unnecessary for us to pass on the points of error in the Schiller-King application.

The record reflects that Mrs. Schiller (then Miss Helen Bryson) and Miss King were guests in defendant's automobile and were injured when the automobile ran over a street curb in the City of Dallas at about 3 o'clock A. M. and collided with a lamp post and a tree.

One of the grounds on which the plaintiffs sought to impose liability on the defendant was that the defendant was driving his automobile on a public street in the City of Dallas while he was intoxicated and while he was under the influence of intoxicating liquor, in violation of Article 802 of the Penal Code, Vernon's Ann.P.C. art. 802, which act was alleged to be in heedless and reckless disregard of the rights of his passengers and was a proximate cause of the acts and omissions causing plaintiffs' injuries. Defendant entered a general denial, but alleged that if he was heedless and reckless in driving his automobile while intoxicated or while under the influence of intoxicating liquor, the plaintiffs knew of his condition and acted in heedless and reckless disregard of their own safety in failing to leave the automobile on several occasions when they had fair and reasonable opportunity to do so. Defendant also pleaded that the plaintiffs assumed whatever risk was involved in riding in defendant's car and that their conduct in remaining in and in failing to leave the car, knowing that defendant was intoxicated, amounted, in law, to an assent to the acts and omissions of the defendant, thereby barring a recovery under the doctrine expressed in the maxim 'volenti non fit injuria,' which means 'that to which a person assents is not esteemed in law an injury,' Wood v. Kane Boiler Works, Tex.Sup., 238 S.W.2d 172, 174, or 'He who consents cannot receive an injury.' Black's Law Dictionary.

In answer to special issues submitting the foregoing theories of liability and of defense, the jury found that defendant drove his automobile on a public street in Dallas while under the influence of intoxicating liquor on the occasion in question, that such act was in heedless and reckless disregard of the rights of plaintiffs, and that such heedless and reckless disregard of the rights of plaintiffs was a proximate cause of their injuries; that plaintiffs knew and realized that defendant was intoxicated or under the influence of intoxicating liquor; that they had a fair and reasonable opportunity to leave the car after they acquired such knowledge, but did not act with knowledge of the danger in riding with defendant and that their failure to leave the car was not in heedless and reckless disregard of their own safety. The jury also found that the plaintiffs impliedly assented to the manner in which defendant drove his car. Having answered that plaintiffs did not act in heedless and reckless disregard of their own safety in failing to leave the car, there was no occasion for the jury to consider the issue of proximate cause given in connection with that issue.

Defendant filed proper motions to ignore certain of the jury findings, to enter judgment on the verdict for defendant, and to enter judgment for the defendant non obstante veredicto, all of which motions were overruled. The substance of these motions is incorporated in points of error presented by the defendant to the Court of Civil Appeals and to this court, in which he contends, in effect, that a recovery by plaintiffs is barred because since they knew that the defendant was driving his car while intoxicated the law charges them with knowledge and realization of the danger in riding with him and the jury finding of absence of such knowledge is not binding and should be ignored; further, that knowing that the defendant was intoxicated, plaintiffs acted in heedless and reckless disregard of their own safety, as a matter of law, in failing to leave the car upon fair and reasonable opportunity being afforded, which failure, as a matter of law, was a proximate cause of their injuries, and that the jury's negative answer to the heedless and reckless issue in this connection and their failure to answer the proximate cause issue should be ignored. Respondent contends on the same reasoning that a recovery by plaintiffs is also barred, as a matter of law, by the doctrine of assumed risk or the kindred doctrine of volenti non fit injuria.

We have concluded that defendant's motions should have been granted and that the Court of Civil Appeals erred in not so holding.

At the outset we may accept the view urged by the plaintiffs and adopted by the Court of Civil Appeals that the defense of assumed risk is only applicable in Texas to contractual relationships like that of master and servant. This has been too long, too often, and too lately held by our courts to permit of re-examination at this time. Roscoe, S. & P. Ry. Co. v. Jackson, 60 Tex.Civ.App. 276, 127 S.W. 872 (no writ history); City of Weatherford Water, Light & Ice Co. v. Veit, Tex.Civ.App., 196 S.W. 986 (writ dism.); San Angelo Water, Light & Power Co. v. Baugh, Tex.Civ.App., 270 S.W. 1101 (writ dism.); Texas, Pacific Coal & Oil Co. v. Grabner, Tex.Civ.App., 10 S.W.2d 441 (no writ history); West Texas Utilities Co. v. Renner, Tex.Com.App., 53 S.W.2d 451 (holding approved); Wood v. Kane Boiler Works, Tex.Sup., 238 S.W.2d 172. It has been held specifically that the doctrine of assumed risk cannot be invoked to defeat a recovery by a plaintiff for injuries received in riding with a negligent driver of an automobile. Buick Automobile Co. v. Weaver, Tex.Civ.App., 163 S.W. 594 (writ refused); Ford Motor Company v. Maddin, 124 Tex. 131, 76 S.W.2d 474. Even so, our courts have recognized that a recovery by a plaintiff may be barred by such doctrines as 'voluntary exposure to risk', Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, or that known as volenti non fit injuria, Levlon v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876 (writ ref.), which doctrines, if distinguishable from the doctrine of assumed risk, are nevertheless closely akin thereto. Ignoring, then, the defense of assumed risk, as that defense is defined in this state in its technical sense, there is yet much to be considered in the defenses offered by defendant.

The distinction in this case between the defense that in failing to leave the automobile plaintiffs acted in heedless and reckless disregard of their own safety as a matter of law, on the one hand, and the defense of volenti non fit injuria on the other, is more philosophical than real. In the first, it is assumed that the defendant has breached a duty of care owing to the plaintiffs but that the plaintiffs' own negligence has contributed to bring about their injuries and bars a recovery. The second is based upon the theory that the defendant owes no duty of care to plaintiffs who have consented to their injuries, Wood v. Kane Boiler Works, supra. But to sustain either or both defenses it was necessary that defendant show that the plaintiffs knew that the defendant was intoxicated and knew and realized the danger in continuing to ride with the defendant, but, having fair and reasonable opportunity to leave, continued to ride with him anyway.

In support of his contention that a recovery is barred in this case defendant cites the following authorites. Archer v. Bourne, 222 Ky. 268, 300 S.W. 604; Young v. Wheby, 126 W.Va. 741, 30 S.E.2d 6, 154 A.L.R. 919; Garrity v. Mangan, 232 Iowa 1188, 6 N.W.2d 292; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Sparks v....