Scott v. Gardner

• Decision Date: 26 November 1941
• Docket Number: No. 1876-7697.,1876-7697.
• Citation: 156 S.W.2d 513
• Parties: SCOTT v. GARDNER et al.
• Court: Texas Supreme Court

Page 513

156 S.W.2d 513

SCOTT v. GARDNER et al.

No. 1876-7697.

Commission of Appeals of Texas, Section B.

November 26, 1941.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by Beulah Gardner and her husband against Winfield Scott to recover for injuries sustained by named plaintiff while the plaintiffs were guests in defendant's automobile driven by named plaintiff's husband. From a judgment for plaintiffs, defendant appealed and the Court of Civil Appeals for the Second Supreme Judicial District certified questions to the Commission of Appeals.

Certified questions answered.

See, also, Tex.Civ.App., 106 S.W.2d 1109.

Cantey, Hanger, McMahon, McKnight & Johnson and J. A. Gooch, all of Fort Worth, for appellant.

McGown, McGown, Godfrey & Logan, B. E. Godfrey, and Harry L. Logan, Jr., all of Fort Worth, for appellees.

SMEDLEY, Commissioner.

The Court of Civil Appeals for the Second Supreme Judicial District has certified five questions to this court in a suit for damages by appellees, Mrs. Beulah Gardner and her husband, George Gardner, against appellant, Winfield Scott, on account of personal injuries suffered by Mrs. Gardner when she and her husband, as guests of appellant, were riding in appellant's automobile driven by Mr. Gardner. Recovery is sought under the provisions of the guest statute (Ch. 225, Acts Reg.Sess. 42d Leg., 1931; Art. 6701b, Vernon's Ann. Tex.Civ.Stat.) which authorizes recovery of damages by a guest against the owner or operator of an automobile for injuries, death or loss, in case of accident, when the accident is intentional on the part of the owner or operator or is caused by the owner's or operator's "heedlessness or his reckless disregard of the rights of others". Appellees' petition contains the following allegations as to acts and conduct of appellant Scott that caused the accident: "But in utter disregard of the warning and admonishing of the plaintiff George Gardner and without any provocation on the part of the plaintiff, defendant negligently and in heedless and reckless disregard of the rights of plaintiffs and without respect to their safety, with the utmost gross negligence and purposefully and willfully and intentionally and while drinking and intoxicated, defendant Winfield Scott began kicking in the direction of plaintiffs and kicking the steering wheel of the automobile in which the parties were riding, kicking the hands of plaintiff George Gardner on the steering wheel and by said acts caused him to lose control thereby and causing the automobile to swerve into the ditch on the side of the road and turn over. That plaintiff George Gardner did everything within his power to prevent the accident but that the acts of defendant intentionally, willfully and grossly negligent and done in heedless and reckless disregard of the rights of plaintiff was of such nature that control of the car was entirely taken away from plaintiff, George Gardner, and caused the car thereby to turn over. As a result of said acts and of the turning over of said automobile and the intentional and grossly negligent conduct of the defendant as hereinabove described, serious injuries were proximately caused to the plaintiff Beulah Gardner."

The first and third special issues submitted to the jury and the answers thereto are:

"Issue No. 1: Do you find from a preponderance of the evidence that immediately prior to the time the automobile turned over on the occasion in question that the defendant Winfield Scott kicked the steering wheel of said automobile? The answer was `Yes'."

"Issue No. 3: Do you find from a preponderance of the evidence that the kicking of said steering wheel by the defendant Winfield Scott, in the event you have found that he did kick the same, constituted `heedless and reckless disregard of the rights of others', as that term is defined for you above, on the part of the defendant Winfield Scott? The answer was `Yes'."

The first two questions certified are:

"1. Does the petition, which alleges that the defendant Scott while intoxicated `began kicking in the direction of plaintiffs and kicking the steering wheel of the automobile in which the parties were riding, kicking the hands of the plaintiff George Gardner on the steering wheel and by said acts caused him to loose control thereby and causing the automobile to swerve into the ditch on the side of the road and turn over,' charge more than one act causing the accident?

"2. Or, is our interpretation correct, wherein we hold that the meaning of the allegations simply is to charge the defendant with kicking the steering wheel, thereby kicking the hands of the driver (Gardner) which were on the wheel and thereby causing Gardner to lose control of the automobile, resulting in the wreck?"

The Court of Civil Appeals in its tentative opinion accompanying the certificate expressed the conclusion that special issue No. 1 did not conform to the allegations of plaintiffs' petition, in that the issue submitted to the jury was whether appellant Scott kicked the steering wheel of the automobile, whereas "the gist of the pleading is to charge Scott with kicking that contacted the hands of the driver, thus causing the driver to lose control of the car." In further explanation of its construction of the petition the tentative opinion states: "The so called acts are pleaded as one which bring about one condition and the consequent result. Namely, a kicking in the direction of the plaintiffs and kicking the steering wheel, with the result that the defendant kicked the hands of the driver and caused him to lose control of the car."

In our opinion the petition is fairly and reasonably construed as alleging more than one act causing the accident. The allegations are in substance that the defendant kicked in the direction of plaintiffs and kicked the steering wheel of the automobile and kicked the hands of Mr. Gardner on the steering wheel and by said acts caused him to lose control of the automobile. The petition alleges that Mr. Gardner was caused to lose control "by said acts", meaning the acts of appellant in kicking in the direction of plaintiffs, in kicking the steering wheel and in kicking Mr. Gardner's hands. The pleading might have been amended to show more distinctly that more acts than one were alleged as causing the accident, but no special exception was directed to that portion of the petition referred to in the first certified question. In the absence of special exception the petition will be liberally construed in the pleader's favor and to support the judgment. Schuster v. Frendenthal, 74 Tex. 53, 11 S.W. 1051; Hovencamp v. Union Stockyards Co., 107 Tex. 421, 180 S.W. 225; Humphreys Oil Co. v. Liles, Tex. Com.App., 277 S.W. 100. What has been said answers the first certified question in the affirmative and the second in the negative.

The certificate states that appellees pleaded that appellant Scott "was in truth and in fact intoxicated and drunk", that both appellees testified to appellant's taking several drinks and then sets out portions of appellees' testimony. The substance of Mrs. Gardner's testimony, quoted in the certificate, is: Mr. Scott was mumbling as though he was driving an airplane and he would say "Give her the gun, Jazz". He called Mr. Gardner "Jazz". She cannot explain drunkards except that she knows that they mumble sometimes and do not realize what they are doing or saying and she thinks that is what she means by "drunk". When he said "Give her the gun, Jazz" she did not know what he was talking about because she had never ridden in an airplane. At the time it sounded unintelligent to her.

The substance of Mr. Gardner's testimony with respect to Scott's condition, quoted in the certificate, is: Appellant Scott was staggering when he got into the car. He kept remonstrating with Mrs. Gardner and what he said "did not sound like he was in his right mind". He was not talking with any sense. He was not "at himself". In his opinion appellant was drunk at the time. A "drunk" means to him, the witness, "a person that does not know what they are doing", and that is the condition he thinks appellant was in when he left the house and until the accident.

The certificate sets out testimony of Mr. Gardner about the acts of Scott immediately preceding the accident. It is that after the car had been driven about 15 miles and a few minutes before the accident appellant reached over, pushed the car out of gear and "gave a whoop and hollered, `Give her the gun, Jazz'". When they had gone a little farther appellant began to choke and curse Mrs. Gardner. They went a few more yards when appellant put his foot over into the steering wheel and held it there until the car turned over.

The third question propounded in the certificate is: "Does the undisputed testimony of the two plaintiffs touching Scott's intoxication establish the fact that Scott was drunk on the occasion in question, as being an undisputed fact, there being no suspicious circumstances attendant upon the giving of such testimony by the plaintiffs, and they being corroborated by their testimony detailing the acts and conduct of Scott, at the time he is charged with being drunk?" Answers to this and the other questions must be based upon the facts set out in the certificate and not upon a consideration of the evidence contained in the statement of facts. Goldstein v. Union National Bank, 109 Tex. 555, 561, 213 S.W. 584; Employers' Liability Assurance Corp. v. Young County Lumber Co., 122 Tex. 647, 657, 64 S.W.2d 339.

Undoubtedly the undisputed testimony of appellees quoted in the certificate would have established as a matter of law the fact that appellant was under the influence of intoxicating liquor, had the testimony come from disinterested witnesses. The substance of appellees' testimony is that appellant was drunk, and appellant's conduct, as disclosed by appellees' testimony, was that of a drunken...