Sloan v. Nevil

• Decision Date: 09 December 1949
• Parties: SLOAN v. NEVIL.
• Court: Tennessee Court of Appeals

Page 350

229 S.W.2d 350

33 Tenn.App. 100

SLOAN v. NEVIL.

Court of Appeals of Tennessee, Middle Section.

Dec. 9, 1949.

Certiorari Denied by Supreme Court April 29, 1950.

Jack Keefe, Nashville, Dunn & Davis, Nashville, for plaintiff in error.

Payne & Olschner, Nashville, for defendant in error.

HOWELL, Judge.

This is a suit by Mrs. J. Louis Sloan, as the surviving widow of J. Louis Sloan, for the use and benefit of herself and her minor children, against Claude W. Nevil, and the first Count of the declaration alleges that J. Louis Sloan, deceased, was a paying guest passenger in the automobile of the defendant who was driving the car and that they and two others were on their way to St. Louis, Missouri, to see a World's Series baseball game on October 15, 1946, and that the defendant knew or in the exercise of due care, should have known at the time the deceased was invited by him to make said trip that his automobile was in a defective and unsafe condition in that the right front wheel, axle, spindle and connecting parts or some of them were mechanically defective and unsafe in such a manner that an accident might have been anticipated by him, that defendant knew or should have known that his vehicle had been in such a defective and mechanically unsafe condition for a long time before said trip was begun, that defendant was not only guilty of negligence and carelessness in failing or refusing to advise the deceased of such defects but was guilty of gross and wilful and wanton negligence in failing to have his automobile properly inspected and repaired and in failing to advise said deceased of its condition; that the defendant knew or in the exercise of reasonable care should have known that it was extremely dangerous to the life and limb of the deceased, Sloan, as well as the other occupants, to use said car in transporting them at all and especially at rapid speeds for a considerable distance from Nashville, Tennessee, to St. Louis, Missouri; that as a direct and proximate result of the careless, reckless, wilful, and wanton acts of the defendant, as aforesaid, and in utter disregard to the safety of the plaintiff's intestate, the deceased was hurled violently into, against and upon the various parts of the interior of said vehicle when it overturned and was thrown from the car against the surface of the pavement of the highway, suffering severe and critical injuries, from which he died within a few hours, although he was rushed to a nearby hospital and every effort was made to save his life.

The second count adopts the allegations of the first count and also alleges that on the day and date aforesaid, the defendant Claude W. Nevil had worked at his usual place of employment since an early morning hour and had not had any sleep whatever from the time he arose on the morning preceding the accident until the said accident occurred; that he had come to the home of your complainant in the early evening and invited him, as aforesaid, to make said trip with him. Plaintiff avers that defendant was guilty of negligence in failing to advise the deceased Sloan of said fact and in continuing to operate his vehicle over the long distance which he had travelled prior to the accident which occurred about 5:30 A. M. Plaintiff further alleged that at the time of said accident the defendant was operating his automobile in a careless, reckless and negligent manner, at a reckless and high rate of speed which was unreasonable under the existing circumstances, and that his negligence in so driving while in a fatigued condition caused said vehicle to overturn several times, hurling the plaintiff's intestate violently into, against and upon the interior part of said car and against the paved highway.

The deceased died on October 16, 1946, as a result of the injuries sustained.

The plea was not guilty.

The case was tried by the Circuit Judge and a jury and at the close of all the proof the trial Judge granted a motion made by the defendant and instructed the jury to return a verdict in favor of the defendant and the suit was dismissed.

After proper procedure the plaintiff has appealed in error to this Court and has assigned as errors that there is no evidence to support the verdict, that the verdict is against the weight and preponderance of the evidence, that the trial Judge erred in granting the motion of the defendant and also in ruling certain testimony as incompetent.

The facts as to how the accident which resulted in the death of J. Louis Sloan happened, are not disputed.

The defendant Claude W. Nevil was the owner of the 1940 Ford automobile and he and his friend and next door neighbor J. Louis Sloan and two other friends, Robert Clark and his brother William Clark, were on a trip to St. Louis to see a baseball game. The expenses of the trip were to be paid by all four of the parties, each one fourth. They left Nashville about 7:30 or 8 o'clock in the evening and stopped in North Nashville to get oil, gas and have the car greased, the expense of which was $4.40. each paying his share or $1.10. About 4:30 the next morning while the defendant was driving, with the deceased on the front seat with him and the two Clarks on the rear seat and while near the town of Chester, Illinois, and while on a straight two lane concrete highway and going at a moderate rate of speed, the front end of the car dropped to the paving and the car turned over, staying on the highway. The deceased and the defendant were thrown out of the car and the two Clarks were rolled around on the back seat. The Clarks were both either asleep or dozing when the accident happened and offered no explanation of it. They were the only witnesses who testified for the plaintiff as to what happened on the highway.

The defendant offered the Illinois Guest Statute in evidence and he testified as to the happening of the accident: 'I was driving along and all of a sudden I sensed the car turning over and cut the ignition switch off and after that I don't know what happened until after it was all over with.'

The automobile was in good mechanical condition and a short time before the accident had been examined and gone over and repaired. New tie rods and tie rod ends had been put on it and the front end including the steering and wheels had been checked and lined up. The whole car had been inspected and gone over by the mechanic at a garage in Donelson. Nothing was wrong with the car so far as the defendant knew.

It is insisted for the plaintiff that the deceased, J. Louis Sloan, was a 'paying guest passenger' in the defendant's automobile and that the Illinois Guest Statute does not apply to this case. This statute as read into the record by stipulation of the parties is as follows: 'No person riding in an automobile as a guest without payment for such ride, nor his personal representative, in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle, or its owner or his employee or agent, for injury, death or loss in case of accident unless such accident shall have been caused by the willful and wanton misconduct of the driver or operator of the motor vehicle, or its owner or his employee or agent, and unless such willful and wanton misconduct contributed to the injury, death or loss for which action is brought. Nothing in this section shall be construed to relieve a motor vehicle carrier of passengers for hire of responsibility for injury or death sustained by any passenger for hire.' See Illinois Revised Statutes of 1945, c. 95 1/2, § 58a, Section 42-1, Laws of 1935, p. 1220, Illinois Motor Vehicle Act.

The law is well settled that in an action for injuries received while a guest and occupant of defendant's car the act of negligence which caused the injuries must be governed and controlled by the laws of the place where the injury occurred. See Brown v. Hogan, 14 Tenn.App. 251 and other cases.

Was the deceased under the facts of this case a guest with the meaning of the Illinois Statute?

In the Illinois case of Connett v. Winget, 374 Ill. 531, 30 N.E.2d 1, 3, the Supreme Court said: 'In determining whether a person is a guest within the meaning of the 'Guest statutes' in the several States, consideration is given to the person or persons advantaged by the carriage; if it confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if the carriage tends to promote mutual interests of both the person carried and the driver, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest within the meaning of such enactments.' See also Leonard v. Stone, 313 Ill.App. 149, 39 N.E.2d 388.

In the case of Boyd v. Mueller, 320 Ill.App. 303, 305, 50 N.E.2d 847, 849, the Court said: 'Plaintiff, insisting that the trip on which she was injured was a trip having a business aspect, says that because of lonesomeness Nichols, for his own pleasure invited his three friends to visit him at the airport and that the trip was primarily for the purpose of the owner of the car. In taking this position plaintiff ignores the fact that the only benefit conferred on Nichols was incident to the companionship of his friends and that the entire trip was devoted to social activities--the visit with Nichols at the Pal-Waukee airport, dinner at Des Plaines, the social ride in the evening, including a visit to another airport, without the slightest evidence of any business or material personal interest being suggested or promoted. If a trip is social its character is not transformed into a trip with business aspect because the owner suggests it or extends the invitation. In Gaboury v. Tisdell, 261 Mass. 147, 158 N.E. 348, 349, plaintiffs were sisters of defendant's wife and lived in defendant's house; the accident occurred on a trip from Worcester Mass., to Central Falls, R. I., plaintiffs, def...