(dissenting).
I am unable to agree with the disposition of this case made by the majority. I do concur in the holding that the trial court did not err in concluding that as a matter of law Burt was a guest in Lochausen’s car at the time of the accident. However, I think the evidence is sufficient to sustain the jury’s findings that the operation of defendant’s automobile at an excessive rate of speed and that defendant just prior to the accident drove and operated his automobile so as to overtake and pass a truck proceeding in the same direction as defendant on a left-hand curve in the highway was gross negligence and a proximate cause, of the accident. In arriving at this conclusion it is necessary to consider the two findings together, since excessive speed alone has been said to be insufficient to constitute gross negligence, Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571, 575; and the mere attempt to pass the van on a curve in the absence of speed necessarily could not include “something [in the nature] of a continued or persistent course of action” but when these two findings are considered together I think they meet all the requirements of a conscious indifference and of a continued or persistent course of action. A careful reading of the entire statement of facts warrants the inference that the defendant had been driving at a terrific rate of speed, up to 75 miles per hour, for some distance prior to his attempt to pass the Mayflower van. This van was of considerable length, consisting of a truck and a 38 foot trailer. He had passed the Wiggs Appliance truck at such speed about 400 yards before attempting to pass the Mayflower van. Defendant himself testified that he accelerated his speed in order to pass the Mayflower van. The accident occurred about seven o’clock in the evening and the evidence shows it was dark at this time. The road on which defendant was traveling had one curve between the viaduct and the curve on which the accident occurred. This portion of the road passed through the city limits. The distance from the viaduct to the place of the accident was about a mile and a half. The road had been frequently traveled by the defendant and he knew that it was a heavily traveled road. There is some evidence that there was oncoming traffic at the time defendant attempted to pass the van. He cut so close in front of the van that the driver thereof took his foot off of the gas accelerator in order to slow down to keep from hitting defendant, and there is evidence that this driver also applied his brakes on the van. The evidence is ample to warrant an inference that nothing was wrong with the steering apparatus on defendant’s car, and that it did not lock prior to the accident. The jury may properly have drawn the inference that due to the terrific speed defendant could not control his car so as to follow the paved curve of the highway. There is evidence that he did straighten out his car after cutting in front of the van. The jury could reasonably infer that due to his terrific speed and his cutting in in front of the van he could not control his car. The curve was from 30 to 45 degrees. The distance defendant’s car traveled over the pavement until it hit the guard rail, i. e., 68½ feet; the distance along the guard rail, scraping it for 114 feet, and the distance from the guard rail across the highway, through the oleander bush until it came to rest on top of the river levee, 191 feet, the position of the car, being on its top when it came to rest, and the deep furrow cut by the right wheels of the car in the shoulder of the highway attest the terrific force of the car.
That the law of this State is in a state of confusion as to what facts and circumstances will support a finding of gross negligence so as to warrant recovery under our guest statute is ably demonstrated by the dissenting opinion of Mr. Justice Garwood in Rogers v. Blake, Tex., 240 S.W.2d 1001. In my opinion the guest statute was never *920intended as a panacea for negligent conduct which the man of ordinary prudence and judgment, with due regard for the safety of the guest, must necessarily regard as reckless and heedless. Unless there can be no recovery by a guest except for intentional injury, then it seems to me the facts of this case clearly take it out of the realm of ■ordinary negligence and place it in the category of reckless or heedless conduct. Certainly such conduct would be so regarded by the man of ordinary prudence and judgment having a due regard for the safety of the guest.
I believe there is no evidence to support the answer of the jury to Question No. 20, which found in effect that in undertaking to return Burt to his home in the Upper Valley Lochausen was acting in the scope of his employment. Therefore, it is my view that the judgment of the trial court, insofar as it decreed that plaintiff take nothing against the Life Insurance Company of Virginia, should be affirmed, and that in all other respects it should be reversed, and since appellee Lochausen in his brief has presented no prejudicial error committed against him over his objection on the trial, it is our duty to render the judgment on the verdict that the trial court should have rendered, against defendant Lochausen. Rule 324, Rules of Civil Procedure. City of Houston v. Lurie, Tex., 224 S.W.2d 871, 14 A.L.R.2d 61; LeMaster v. Fort Worth Transit Co., 138 Tex. 512, 518, 160 S.W.2d 224.