Smith v. Henson

• Decision Date: 04 September 1964
• Citation: 18 McCanless 541,214 Tenn. 541,381 S.W.2d 892
• Parties: , 214 Tenn. 541 Ralph H. SMITH, Administrator of the Estate of Sheila Gail Kendrick, Plaintiff in Error, v. Norman E. HENSON, Defendant in Error. Ralph H. SMITH, next friend of Dan Kendrick, a minor, Plaintiff in Error, v. Norman E. HENSON, Defendant in Error.
• Court: Tennessee Supreme Court

Page 892

381 S.W.2d 892

18 McCanless 541, 214 Tenn. 541

Ralph H. SMITH, Administrator of the Estate of Sheila Gail

Kendrick, Plaintiff in Error, v. Norman E. HENSON, Defendant in Error.

Ralph H. SMITH, next friend of Dan Kendrick, a minor, Plaintiff in Error, v. Norman E. HENSON, Defendant in Error.

Supreme Court of Tennessee.

Sept. 4, 1964.

H. D. Kerr, Conrad Finnell, Cleveland, for plaintiffs in error.

Robert Kirk Walker, Strang, Fletcher, Carriger & Walker, Chattanooga, V. F. Carmichael, Cleveland, for defendant in error.

WHITE, Justice.

The trial court sustained the demurrers filed to the declarations in these two cases. Since they involve the same facts and substantially the same propositions of law, one opinion will be sufficient.

The declaration in the case brought by Ralph H. Smith, as administrator, etc., alleges:

'That on or about the 19th day of July, 1962, the deceased, at the Defendant's invitation, went to the Defendant's home which is located on the side of a high steep hill near Charleston, Tennessee, at a point in Bradley County, Tennessee overlooking the Hiwassee River. On the date of said visit, and prior thereto, the deceased's mother, Margaret Kendrick, a minor twenty (20) years of age, was employed by the Defendant to work in his home at an hourly wage of $1.00 per hour. * * * the deceased, went with her mother, Margaret Kendrick, * * * her brother, Dan Kendrick, a minor two (2) years of age, her uncle, Jerry Kendrick, a minor seventeen (17) years of age, and her aunt, Janice Kendrick, a minor fifteen (15) years of age, to the Defendant's home located on the steep hill or bluff, in order that her mother could pursue her employment with the Defendant.'

It is further alleged that the defendant owned a 1958 Cadillac automobile which he used in driving to his place of employment, Southern Bowaters Paper Corporation, located a short distance from his home at a point on the north bank of the Hiwassee River, almost directly across the river from his home.

On the date of the accident the defendant directed Margaret Kendrick to accompany him to his place of employment and upon arrival there he then directed her to drive his automobile back to his home and, according to the declaration, 'did further direct her to park it in a position where she could wash it and clean the interior during the course of the day.'

She was not directed to park the automobile at any particular place, but it is said in the declaration that 'in order to wash and clean the defendant's Cadillac automobile as was directed by the Defendant, it was necessary for his minor servant, Margaret Kendrick, to park said automobile in a dangerous and precarious position on the Defendant's property.' This is a conclusion--not a fact--drawn by the pleader from the charges aforesaid that she was directed to park the car 'in a position where she could wash it and clean the interior during the course of the day.'

It is alleged that the automobile driveway at the defendant's home 'follows the steep contour of the Defendant's lot so that an automobile parked in said driveway faces downward on the sharp slope overlooking the River below.'

We have been unable to find an allegation in the declaration that the said Margaret Kendrick had washed and cleaned the automobile prior to the unfortunate accident. There is an allegation that due to her incompetency, inexperience and her lack of knowledge of mechanical workings of an automobile she 'did not comprehend the danger created by parking said automobile on a steep grade where children were playing.' It is further alleged that Margaret Kendrick was not a licensed driver and turning an automobile over to her, she not being licensed, was in itself an act of negligence which was the proximate cause of the accident.

It is further alleged in the declaration that 'Margaret Kendrick came out of the Defendant's house where she had been working in time to see Sheila Gail Kendrick, a minor three (3) years of age, in the front seat of the Defendant's Cadillac Automobile, and Dan Kendrick, a minor two (2) years of age, in the back seat of said automobile, and in time to see said automobile begin to roll down the steep slope toward the River below. Margaret Kendrick and Janice Kendrick, both minors, did make a courageous but futile attempt to stop the moving vehicle, and both were injured in their efforts to do so. * * * Dan Kendrick, the two (2) year old boy, was seriously and permanently injured, and Sheila Gail Kendrick, the three (3) year old girl, was killed instantly on impact * * *.'

The defendant says in his demurrer that the declaration fails to charge him with any specific act of proximate negligence and that his actions in turning over the automobile to Margaret Kendrick and directing that she wash it and clean the interior during the course of the day were remote acts and did not contribute as a proximate cause to the accident. The trial court sustained this theory.

In the case of Smith, as Administrator of the Estate of Sheila Gail Kendrick, another ground of the demurrer is that the mother, Margaret Kendrick, being the sole beneficiary of the damages recovered, if any, for the death of her minor child could not maintain the action even through an administrator because her acts of negligence contributed to the death of her child and, therefore, any recovery by her would be barred.

Considering first the action of damages for the death of Sheila Gail Kendrick brought by her administrator, Ralph H. Smith, we find that under T.C.A. Sec. 20-607 the mother would be the sole beneficiary of any sum obtained for the wrongful death of her deceased child. Therefore, any proximate negligence on her part would bar her recovery in this case. A recovery will not be permitted when the negligence of the sole beneficiary thereof proximately contributes to the death for which recovery of damages is sought. Likewise, contributory negligence of one parent of a child wrongfully killed is imputable to the other so as to preclude recovery by or for the benefit of the parents, or either of them, in an action for the death of the child. Nichols v. Nashville Housing Authority, 187 Tenn. 683, 216 S.W.2d 694 (1949).

The rule is more clearly stated in the case of Bamberger v. Citizens' Street Railway Co., 95 Tenn. 18, 31 S.W. 163, 28 L.R.A. 486 (1895), in which it was said:

'The underlying principle in the whole matter is that no one shall profit by his own negligence, and to allow the father, who has been guilty of negligence, to recover, notwithstanding that negligence, when he brings the suit as administrator, although he could not do so in his own right, would defeat this underlying principle by a mere change of form, when the entire recovery, in either event, goes to him alone. Upon principle, we think that, no matter how the suit is brought,--whether as administrator or as father,--it can be defeated by the father's contributory negligence, when he is sole beneficiary.' 95 Tenn. at 37, 31 S.W. at 168.

In determining whether or not the mother was guilty of negligence so as to bar a recovery, we look to the declaration in which it is alleged that the mother parked the car on the premises in the alleged dangerous position; the mother knew the children were playing on the premises and she failed to properly supervise them, permitting them to get into the parked and unlocked automobile. We believe these facts as set out in the declaration conclusively show, as a matter of law, the mother's contributory negligence under the rationale of Bamberger v. Citizens' Street Railway Co. and Nichols v. Nashville Housing Authority, supra.

In considering the case of Dan Kendrick, a minor, who brought his action through Ralph H. Smith, as next friend, the case of Bamberger v. Citizens' Street Railway Co., supra, would not be applicable because the recovery in this case would be by the injured minor child. Therefore, we look to the declaration to determine whether or not there is any allegation upon which the defendant Henson could be found guilty of an act of negligence or breach of duty to the minor plaintiff; and, second, whether the intervening acts of the mother are such as to relieve the defendant of responsibility for his original negligent act or acts, if any.

The alleged incompetence of the driver, Mrs. Kendrick, is based upon the charge that she was an unlicensed driver. It has been widely held that the mere fact that an individual is unlicensed does not render the owner of an automobile liable for the negligence of a borrower where such fact has no causal connection with the injury or damage. Carter v. Montgomery, 226 Ark. 989, 296 S.W.2d 442 (1957), 5A Am.Jur., Automobiles and Traffic, Section 582, 137 A.L.R. 475.

Then, too, it must be borne in mind that Mrs. Kendrick was not driving the automobile at the time of this accident. She admittedly parked the car in the driveway for the purpose of cleaning the interior and washing it during the day. There is no direct charge that she was ordered to park the car in the driveway. Apparently she failed to secure the brakes properly or lock the automobile. Her two children entered it and in some manner caused it to roll down the hill resulting in injuries to them. In our opinion there is no causal connection between the accident and the delivery of the car by the defendant to Mrs. Kendrick with instructions to clean and wash the automobile during the day.

The plaintiff in error relies upon the case of Garis v. Eberling, 18 Tenn.App. 1, 71 S.W.2d 215 (1934), to support the first proposition that the defendant was guilty of an act or acts of negligence which proximately caused or contributed to the injuries sustained by Dan Kendrick.

In the Garis case the plaintiff brought an action for the wrongful death of his child who was killed while playing about the defendant's automobile...