Tyree v. Tudor

• Decision Date: 19 April 1922
• Docket Number: 360.
• Citation: 111 S.E. 714,183 N.C. 340
• Parties: TYREE v. TUDOR ET AL.
• Court: North Carolina Supreme Court

111 S.E. 714

183 N.C. 340

TYREE v. TUDOR ET AL.

No. 360.

Supreme Court of North Carolina

April 19, 1922

Appeal from Superior Court, Forsyth County; Long, Judge.

Action by L. P. Tyree, administrator, against George C. Tudor and others.Judgment for plaintiff, and defendants appeal.Affirmed.

In an action for the death of an occupant of an automobile under the plea of contributory negligence, evidence that the occupant requested the driver "to get her home in a hurry" was properly excluded, as not showing that the occupant had any control over the driver or that the request was the proximate cause of the accident.

This case was before the court, 181 N.C. 215, 106 S.E. 675, where the facts are fully stated.

Bynum Tudor, son of the defendantGeo. C. Tudor, at the time the plaintiff's intestate was killed in the automobile wreck was something over 16 years of age, living with his father under his care and custody.The father was the owner of two automobiles kept on his premises and which he permitted his son to drive at his pleasure, sometimes alone and at other times with the family.

On June 19, 1918, at a dance for young people at the Country Club on the concrete road three miles west of Winston, Bynum Tudor invited Ruth Tyree, the plaintiff's intestate, a young girl something under 16 years of age, to go to the dance with him.It is admitted and was in evidence that he first asked his father for the large car (which was the Hudson touring car), but his father directed him to take the Buick Six roadster, which was a small car owned by his father.Just before going to the dance, liquor was secured by Geo. Tudor an elder brother of Bynum, who was also a minor in the home of his father, which was placed in the Buick roadster.On the night prior to the dance a quart of liquor was in the office of the father, Geo. C. Tudor, and his son Geo. C. Tudor, Jr. stated that it was for the dance.Drinks were given from this liquor to other young men before they went to the dance and also, after their arrival at the dance, Bynum Tudor, who was handing the liquor around to the boys and his brother, put some of the liquor in the punch bowl prepared by chaperones for the young people to drink, and when, during the progress of the dance, Bynum Tudor was requested by one of his friends to walk across the floor, he gave as an excuse that he was too dizzy.

It is also in evidence that just prior to going to the dance, and while the young men were assembling at the drug store, Bynum Tudor, who had purchased bottles to put the liquor in hearing an automobile backing out of an alley, made the statement that, "If they outrun me to-night, damned if they have not got to go some."After the liquor at his father's house had been secured and put in the automobile, and while the young people were assembling at the drug store, Bynum Tudor, driving his car along the street, saw one of the young men, to whom he called, "I have got it," and taking the young man down on a back street he gave him a drink from the liquor in the car.With the liquor stored away in the automobile, he called at the home of Miss Ruth Tyree and carried her from her father's home to the dance at the Country Club.Her remains torn, bruised, and lifeless were brought back to this home the next day.

During the progress of the dance, Bynum Tudor, who did not dance, was racing up and down the road extending from Winston to the Country Club at a speed estimated at from 50 to 60 miles an hour, sometimes racing other automobiles and sometimes motorcycles.

It is also in evidence that, about a month prior to this time, Bynum Tudor driving this same car was racing with other cars along the road from the Country Club to Winston; that two weeks prior to this time he had been indicted in Greensboro for violation of the automobile law, and his father had compromised the indictment; that on Sunday, two days prior to this action, he again violated the automobile law by reckless driving on the street in Winston and had been tried the following day in the police courts, and his father had paid the fine, and the very next night his father had permitted him to take the car with this young girl in it to the dance.

It is further in evidence that this dance lasted until about 1 a. m. and Bynum Tudor was one of the last to leave.In this Buick roadster, besides himself as chauffeur, was his older brother George, also a minor, and Miss Ruth Tyree.Another one of the young girls attending the dance testified that just before they started to leave for Winston she came to the car to speak to Ruth Tyree and found the fumes of liquor on him so strong that she shuddered and drew back.Bynum started back to Wilmington driving the car at a speed estimated by witnesses as between 50 and 60 miles per hour with the sparks flying out from the manifold 7 or 8 inches long, passing car after car on this crowded thoroughfare, which was filled with cars coming back to the city, and in a race with Finley Horton, who immediately preceded him to the city, with whom he had made an agreement just before leaving the club to have a race.As the Tudor car approached Lovers' Lane, which was a public road extending from the Country Club, and immediately behind the high-powered car driven by Fin Horton in this race, Bynum turned too quickly in passing Martin Goodman's car, striking the hub caps on the front wheel on the Goodman car, side-swiping, and bending straight the bumper of that car.The Tudor car with its occupants was hurled over a barbed-wire fence, into an adjoining field, the car upside down, himself and brother severely injured, and with the almost lifeless body of Miss Tyree terribly disfigured hanging on the barbed-wire fence.The speed at which he was running when he side-swiped the Goodman car was such that his car cut off 4 locust posts 4 to 6 inches in diameter as it was hurled into the field.The almost lifeless body of Miss Tyree hanging on the strands of the barbed-wire fence was in such a mangled condition that one of the young men fainted in attempting to remove it, and, when taken to the hospital, where she died almost immediately, her body was in such a horrible condition that the hospital authorities would not permit her parents to see it.

The road was an improved highway 50 feet wide, of which 20 feet in the center was concrete, and 15 feet on each side, where the accident occurred, was a dirt road.Martin Goodman, was driving on the right-hand side of the road and on the concrete near the edge.The Tudor car came up from behind without blowing the horn or giving any signal of its approach, and when it struck the Goodman car was running approximately 60 miles an hour.

Upon this record the jury answered the issues in favor of the plaintiff and assessed the damages at $15,000.Judgment, and appeal by defendants.

Stacy and Walker, JJ., dissenting.

Manly, Hendren & Womble, Parrish & Deal, and Holton & Holton, all of Winston-Salem, for appellants.

O. O. Efird, Jones & Clement, and Swink & Hutchins, all of Winston-Salem, for appellee.

CLARK C.J.

This case was before us, 181 N.C. 215, 106 S.E. 675, upon facts substantially the same as in this appeal, and the court held in a unanimous opinion that--

"Where the owner of an automobile has his son to operate it as his chauffeur, both for business purposes and for the comfort and pleasure of his family, and there is evidence that he has given his permission for his son, just over 16 years of age, to use it in escorting the plaintiff's intestate, a young girl of about the same age, to a dance, it is sufficient upon the question of the fact of the agency of the son that would bind the father for his negligence which proximately caused the death of the plaintiff's intestate when returning from the dance in the automobile."

Also that--

"It was the duty of the father not to intrust the safety of the young girl to his son unless he knew that he was careful and prudent in the operation of the machine, and he is responsible in damages for the death of the [plaintiff's intestate] proximately caused by his son's recklessness in driving the machine while acting as escort."

On this second trial, the evidence was much strengthened for the plaintiff by the testimony that, about a month prior to the time of this occurrence, the chauffeur, Bynum Tudor, had been driving this same car, racing with other cars along this same road between the Country Club and Winston-Salem; that two weeks prior to this time he had been indicted in Greensboro for violation of the automobile law, and his father, Geo. C. Tudor, the defendant, had arranged the indictment; that on Sunday, two days prior to this occurrence, this 16 year old son had violated the automobile laws by reckless driving on a street in Winston, and on the following day had been tried in the police court, and his father, the defendant, had paid the fine.This was the very day before this lamentable occurrence.The father therefore had full notice of the reckless character of his son as a chauffeur and his unfitness to be trusted in charge of an automobile, especially on an occasion of this kind involving the safety and life of a young girl.

There was, besides, on this trial evidence of liquor being in the car, its distribution by the chauffeur and his older brother also in the car, and the defendant's brief stresses the evidence that the chauffeur himself (though denied by him under oath) on that occasion was drinking, if not intoxicated.There was much evidence, uncontradicted, of the disregard of the law, not only in reckless driving and speeding far in excess of that forbidden by law, but, according to the brief of defendants' counsel, of a violation of law against driving an automobile while...