Opinion
40333.
DECIDED FEBRUARY 26, 1964. REHEARING DENIED MARCH 13, 1964.
Action for damages. Coffee Superior Court. Before Judge Hodges.
Memory, Barnes Memory, S. F. Memory, Jr., for plaintiff in error.
George Maddox, Arthur C. Farrar, contra.
Where, in the trial of a suit by a guest passenger against the host driver, the plaintiff testifies that both he and the driver had been drinking, and admitted that he knew at the time he got in the automobile that the defendant driver was under the influence of intoxicating beverages but denied that the defendant was drunk and stated that if he had thought "the defendant had been drinking enough" he would not have gone on the last ride, such testimony does not demand a finding that plaintiff was guilty of such lack of ordinary care for his own safety, or assumption of risk, as would bar his recovery; nor would testimony that plaintiff voluntarily rode with the defendant over straight roads at 80 miles per hour at various times during the day preceding the collision that evening when defendant was also driving at a speed of 80 miles per hour. Statements to the contrary in Stephenson v. Whiten, 91 Ga. App. 110 ( 85 S.E.2d 165) and Staples v. Brown, 96 Ga. App. 176, 178 ( 99 S.E.2d 526), disapproved.
DECIDED FEBRUARY 26, 1964 — REHEARING DENIED MARCH 13, 1964.
J. D. Porcher brought an action against Frank Sparks in the Superior Court of Coffee County for the recovery of damages growing out of injuries received in an automobile collision in which he was riding as a guest in an automobile operated by the defendant. The evidence of the plaintiff, insofar as is material to the decision of the case, is as follows: "Mr. Frank Sparks was in control and direction of the automobile we were riding in that night. We stayed at the Red Oak Restaurant while we were eating supper for approximately thirty or forty-five minutes. After we had eaten, we got in the car and started to Patterson, traveling on old U.S. Highway No. 301. As we backed out from the restaurant and got on the road, I do not remember that there was anything to indicate that there were any obstructions at the end of this road. I believe it is five-tenths of a mile from the restaurant down to the river. As Mr. Sparks approached the river, well, I judge, in my opinion — now, my coat was laying on the back seat — and I reached back there to get it and to light a cigarette, and I was lighting my cigarette, and when I was lighting it he said, `Look out,' or, `Duck.' He must have been going eighty miles an hour at least. I did not pay any attention to that barricade. I was lighting a cigarette. I do not think Mr. Sparks hit the barricade. He hit that pile of dirt which was, I would say, some fifty or sixty feet beyond the barricade. I could not tell you what happened after he hit the dirt. I do not know. Mr. Sparks showed me where the car landed. I was down in that river off the fill about ten or fifteen feet, down in the river bed. It seems like I do remember just a little about being down in the river bed. Mr. Sparks went for help. I don't remember where I was carried after I was injured. . . . Mr. Sparks has a camp down on a creek near Dovers Bluff and I believe they call it Little River. He has a cottage down there and it is in Camden County, but I do not know whether it is Camden County or what county. It is just down there. I would say it is south of Brunswick. I am not sure and do not know much about those places down there. He picked me up about eight-thirty, I imagine, or a little bit of nine. We came up town to the Post Office and he stopped and got his mail and we went from there to Patterson where he saw a Mr. Williamson. We probably stayed there an hour and a half or so, looking for him. We finally found him. He had another man to see and we went to see him and he was not at home. I did not have any business. It was his business but we were together. After he had seen Mr. Williamson, we went by to see this other party and he was not there. I think Frank said he would try to get back around seven-thirty or eight o'clock that night to see him. So, we left to go to Brunswick. Now, which way, I do not know. It must have been around noontime, twelve or twelve-thirty, or somewhere around that time when we left Patterson. We stopped before we got to Brunswick. I do not know the name of the place. It was on some highway. They sold whiskey there and he bought a pint. We had two drinks there apiece, I believe it was. That was not half a pint. A half a pint for four drinks is pretty stiff drinks. I would no say we drank that much. I remember testifying before Mr. Summerall about a year ago. I might have stated at that time that we had two or three drinks and that there was about a half a pint left. We had a couple of drinks apiece. I remember that. Of course, we could have had three drinks. It has been over a year ago now since that happened, but, like I say, should say about a couple of drinks apiece. I would not think so. Each of us had two drinks there. I remember that when I testified before and you asked me if we drank a pint there, said, `I believe we had two or three drinks' and that when you asked me how much was left in the pint I said, `About half full.' It could have been a little bit more than half full. We went from there to Brunswick, uptown by the bus station some place. I am not very well acquainted with Brunswick. Frank made a telephone call; and we went from there, I believe, to some market somewhere and he bought some food. I think it was steaks. I am not sure — potatoes and bread and rolls and steak. We did not have any more whiskey there. I do not know where we went to get the whiskey. It was somewhere down there but it was not at that place. We went to a place called the Forks and met somebody there. I do not know who they were but they were ladies. I had never seen them before. They were driving their own car. I believe we bought the other whiskey after we made the phone call. We bought two pints. Where we bought the whiskey — we went in there and bought the whiskey — and I believe we had a can of beer. I am not sure but I think it was a can of beer, and we did not finish it. There was not a drink taken in there. We did not take a drink then. I testified before that, `We went to some place there — some liquor store — and got two pints of whiskey.' You asked me if we drank the other pint and I said, `No, I hadn't drunk it.' You asked me if we had some drinks after we bought the other two pints and I said, `We had one there, I believe, or a can of beer.' It was a can of beer. I remember now it was a can of beer because we didn't finish it. When my deposition was taken on February 1, 1962, I could not remember whether it was beer or whiskey, but I remember now because I remember we did not finish it. I have refreshed my memory since then, if that is the way you put it. We did not have any whiskey at the Forks. We met the ladies at the Forks. We bought this after we bought the groceries at some other store. After we met the ladies at the Forks, we went to the camp which, I believe, is on Little River. I am not sure. We had about two drinks each out there. I would say not over three. I do not remember whether the one I was with drank anything. We all went in the cottage and fixed dinner and we had a couple of drinks before we fixed dinner. After dinner, I went down to the dock with my companion. We were all together before dinner and had two or three drinks then. After dinner I went to the docks and do not know what happened to the other couple because my companion and I left the cottage. I would not say that there are any houses down there right close to Frank's house. I don't remember how far it was to the nearest house. The ladies left that afternoon in their own car. I do not know where they went. I have not seen them since and would not know them if I were to see them. They left the same time we did. I imagine it was around five-thirty or six o'clock approximately. Somewhere around that time. We left there and went to the Red Oak. I do not believe we stopped any more until we got to the Red Oak. Frank asked me if I would like a sandwich or something to eat, and I said, `I could eat a sandwich.' I would say that we did not drink over a half pint of whiskey that day at the most. I imagine Frank left the whiskey down there. We had been down there before like that and he would take it down there and leave it, some of it. It was not all left. I did not say that all of it was left. Frank and I were not any ways out of the way when this accident happened. I could tell there was a difference in him, but you would not say that he was drunk by any means. He was not dog drunk either. I could tell that he had had a — well, he wasn't at that time, because we had not drank any since, oh, I'd say two o'clock. I said we had a couple of drinks before dinner and we had dinner around two or two-thirty — somewhere around then. It might have been three-thirty or something like that when we ate. I do not know exactly. Naturally, it was getting on in the afternoon before we ate. I should not think there was anything wrong with my mind or recollection at the time this testimony was taken in February of 1962 and would think that my mind was as good then as it is now. I remember you asking me, referring to Mr. Sparks, `He appeared to be feeling pretty good, didn't he?' And I said, "Well, he appeared to be feeling pretty good, yes.' That is correct. You asked me, `It had some effects on him then, didn't it?' And I said, `Why, certainly.' This is correct. That is what I testified. You asked, `Did you dispose of the three pints up until that time?' And I said, `I didn't see any more.' You asked me, `But you were both feeling pretty good from the drinks you had had.' And I said, `Well, I wouldn't say we were dog drunk.' That is correct. You had previously asked me, `You all didn't get any whiskey at this last place you went to?' I said, `No, that was just a place to eat. They didn't have any whiskey.' That is right. I said I did not see any whiskey there. If they sold it, I did not know it. I did not see any there. We certainly did not drink none. You asked me, `But you could tell that he had some drinks?' And I said, `Yes.' You asked me, `How could you tell that?' I answered, `By talking.' That's right, and association. You asked me, `How?' I said, `Well, after you associate with a fellow a long time, you can tell.' That's right. I could tell that he had been drinking by that, but if he had been drunk I would have never been in the car with him. He was not drunk and I was not drunk. I figured he must have been going eighty miles per hour at the time he hit this barricade because he slid his brakes a hundred and twenty feet, stepped off. He hit the pile of dirt hard enough to tear a hole in the side of that and busted a tire, I believe it was, and his fender. So he must have been going at a pretty good rate of speed. He had been driving at a pretty good rate of speed all day, but it was daylight, it was not dark. He had been driving around seventy-five or eighty all day but on straight roads. I did not protest against that driving. I had plenty of chances to get out after I knew he was driving fast. Q. And after you saw he was under the influence of liquor why you could have very easily stayed where you were, couldn't you? A. Yes, sir, and if I'd of thought he'd been drinking enough I would have stayed there. If he'd been drinking enough for that I would not have been in there. In answer to your question whether he was under the influence, I will state he had not drank any since two o'clock as far as I knew. I said he was affected by it — I talked to him — but not drunk. He might have been under the influence but he was not drunk."
The jury returned a verdict for the plaintiff. The case is before this court on the overruling of a motion for judgment notwithstanding the verdict and motion for new trial on the general grounds. The plaintiff in error contends that the evidence of the plaintiff in the case established, without contradiction, that the plaintiff either assumed the risk or was guilty of such contributory negligence as would bar his recovery for the reasons that, as he contends, the plaintiff's evidence shows that plaintiff voluntarily rode in the automobile with the defendant knowing at the time that the defendant was incompetent to drive and operate said automobile because he was under the influence of intoxicants.
"Whether a person who takes passage in an automobile as an invitee or gratuitous passenger and continues to ride therein until an injury happens is guilty of contributory negligence or want of ordinary care by reason of the fact that the driver of the automobile has been drinking an intoxicant, is generally a question for decision by a jury. A verdict will be set aside . . . only when it is plainly and indisputably contrary to the evidence. West v. Rosenberg, 44 Ga. App. 211 ( 160 S.E. 808); Smeltzer v. Atlanta Coach Co., 49 Ga. App. 755 ( 176 S.E. 846)." Britt v. Davis, 53 Ga. App. 783 ( 187 S.E. 125). "If a driver, from intoxication, is in a condition which renders him incapable of operating it [an automobile] with proper diligence and skill, and this is known or palpably apparent to one entering the car, this is a fact which may be proved for the consideration of the jury, along with other facts, to throw light on the question of whether such person exercised ordinary care in entering the car or in remaining in the car, or in reference to his conduct while in it." Powell v. Berry, 145 Ga. 696, 700 ( 89 S.E. 753, LRA 1917A 306).
It follows, therefore, that mere knowledge on the part of a passenger that the driver is under the influence of intoxicating beverages is not, as a matter of law, knowledge that such person is so much under the influence of intoxicants as not to be able to drive safely or with ordinary efficiency so as to make the passenger guilty of such lack of ordinary care for his own safety, or assumption of risk, as will bar a recovery against the driver for injuries occasioned by the driver's gross negligence.
The case of Stephenson v. Whiten, 91 Ga. App. 110 ( 85 S.E.2d 165) is not authority for a ruling to the contrary. In that case the court ruled that a petition which alleges that the defendant was driving while under the influence of intoxicating liquors did not, on demurrer, require a conclusion that the plaintiff knew of the intoxication at the time she entered the automobile. In the opinion (p. 112), the court said, "If one rides with a driver of a motor vehicle knowing that the driver is under the influence of any intoxicating liquors, he is not in the exercise of ordinary care for his own safety. Williams v. Owens, 85 Ga. App. 549 ( 69 S.E.2d 787)"; and immediately thereafter, "The petition for recovery in this case did not affirmatively allege that the plaintiff knew that the defendant was under the influence of an intoxicant, nor did the petition allege facts from which it must necessarily be inferred that the plaintiff had ascertained that the defendant had imbibed to such an extent she could not safely operate the automobile, until after the wreck resulting in the plaintiff's injuries had occurred.
"If the circumstances of the case, as revealed by the allegations of a petition, are so conclusive that a person of ordinary intelligence must be inferred to have been cognizant of the fact that another with whom he rode in an automobile was so intoxicated as to be incapable of driving, the petition is subject to general demurrer. But in this case, as in Evans v. Caldwell, 45 Ga. App. 193 ( 163 S.E. 920), the facts alleged cannot be held so conclusive of the plaintiff's knowledge that the defendant was intoxicated or so much under the influence of intoxicants as not to be able to drive with ordinary efficiency." The part first quoted, including the citation of the case of Williams v. Owens, 85 Ga. App. 549 ( 69 S.E.2d 787), was quoted in Staples v. Brown, 96 Ga. App. 176, 178 ( 99 S.E.2d 526). While the language preceding the citation of the case of Williams v. Owens, seems to support a contrary ruling, an examination of that case discloses that it does not support such a ruling, that is, that one riding with a driver of a vehicle knowing the driver is under the influence of intoxicating liquors, is by reason of that fact alone not in the exercise of ordinary care for his own safety. In the Williams v. Owens case, a petition which alleged that the plaintiff knew the defendant was drinking and knew that he was in no condition to drive (emphasis ours) was held subject to demurrer in that it showed the plaintiff did not exercise ordinary care for her own safety. In the opinion, the court, in distinguishing the case of Evans v. Caldwell, 45 Ga. App. 193 ( 163 S.E. 920), called attention to the facts in that case and in reference to them said, "On the trial of the case, the plaintiff testified that, after he first got into the car, he thought the defendant had had a drink, and that this was what he had meant in his pleading when he had pleaded that the defendant was `intoxicated,' and that, when he alleged that the defendant `had poor muscular control,' he meant that the defendant could have driven all right if he had not driven so fast. The jury were authorized to find from the evidence in that case that, while the plaintiff knew the defendant had had a drink, he did not know that the defendant was too intoxicated to drive safely." It appears, therefore, that the case of Williams v. Owens, 85 Ga. App. 549, supra, rather than sustaining the statement made in Stephenson v. Whiten, 91 Ga. App. 110, supra, and cited with approval in Staples v. Brown, 96 Ga. App. 176, supra, sustains instead the ruling made in the instant case.
Further, the case of Stephenson v. Whiten, 91 Ga. App. 110, supra, was not decided upon the principle stated and for which the case of Williams v. Owens, 85 Ga. App. 549, supra, was cited as authority. The case of Staples v. Brown, 96 Ga. App. 176, supra, is distinguishable on its facts from the present case. In that case it appeared not only that the plaintiff knew the defendant was under the influence of intoxicating liquors, but also knew he was "not driving properly." See Pettigrew v. Branch, 101 Ga. App. 534, 537 ( 114 S.E.2d 391). Riding with a driver of an automobile, knowing that he is drinking and that he is driving in excess of the legal speed limit, does not as a matter of law amount to lack of ordinary care on the part of a guest passenger. Evans v. Caldwell, 45 Ga. App. 193, supra; Evans v. Caldwell, 52 Ga. App. 475, 476 ( 184 S.E. 440). See also Mann v. Harmon, 62 Ga. App. 231 ( 8 S.E.2d 549).
The facts here are not those upon which a sense of conscience, justice and fairness would ordinarily lead to the awarding of damages, but neither were they in those cases. That problem rests not with this court but with the jury. It is no concern of the appellate court what verdict was rendered if it is authorized under the law and the evidence. It cannot be said that the verdict here was not authorized under the law as declared in the cases of Evans v. Caldwell, 45 Ga. App. 193, supra, Evans v. Caldwell, 52 Ga. App. 475, 476, supra, Mann v. Harmon, 62 Ga. App. 231, supra, Britt v. Davis, 53 Ga. App. 783, supra, and Powell v. Berry, 145 Ga. 696, 700, supra, when applied to the evidence adduced upon the trial.
It follows, therefore, that the trial judge, in the case before this court, did not err in overruling the motion for judgment notwithstanding the verdict and the motion for new trial on the general grounds only.
Judgment affirmed. Bell, P. J., Hall and Russell, JJ., concur. Nichols, P. J., concurs specially. Felton, C. J., Frankum, Jordan and Eberhardt, JJ., dissent.
I concur in the judgment of affirmance but cannot agree with all that is said in the majority opinion. Under the facts in this case a jury question was presented as to whether or not the plaintiff knew that the defendant was intoxicated from consuming alcoholic beverages to the extent that it was less safe for him to operate the motor vehicle than if he had not consumed such alcoholic beverages. Neither can I agree to the disapproval of the language used by Judge Quillian, now Mr. Justice Quillian in the case of Stephenson v. Whiten, 91 Ga. App. 110, supra, and quoted in Staples v. Brown, 96 Ga. App. 176, 178, supra.
While prior to 1953 language had been used which would authorize a finding that a person was "under the influence of intoxicating liquors" whether he had consumed "quantitatively wise" one drop or one gallon, the language used by Judge Quillian in the Stephenson v. Whiten case, supra, shows that it was there the legislative intent that the language "under the influence of intoxicants" means under the influence of intoxicants to the extent that it is less safe for such person to drive and operate a motor vehicle. Section 47 of the Uniform Act regulating drivers on highways (Ga. L. 1953, Nov. Sess., pp. 556, 575), provides that it is unlawful for any person who is under the influence of intoxicating liquors to drive and operate a motor vehicle. This same section provides for tests to determine the percentage by weight of alcohol in the defendant's blood with presumptions as to the defendant's intoxication or sobriety based upon such percentages.
Therefore, the conclusion that a person is under the influence regardless of quantity consumed is no longer applicable and a fortiori the language used in the Stephenson v. Whiten and Staples v. Brown cases, supra, "If one rides with a driver of a motor vehicle knowing that the driver is under the influence of any intoxicating liquors, he is not in the exercise of ordinary care for his own safety," means that he knows that the driver is under the influence to the extent that it is less safe for such person to drive and operate a motor vehicle.
In my opinion the plaintiff's own testimony demanded a finding that he failed to exercise ordinary care for his own safety and that the court should have granted defendant's motion for a judgment notwithstanding the verdict. His testimony, being equivocal, contradictory and evasive, must be construed most strongly against him.
The entire event, culminating in the wreck and injury to the plaintiff while defendant was driving 80 miles per hour, was an adventurous orgy involving whiskey, women and roadhouses. One who embarks upon such a hazardous undertaking with a drinking companion and an automobile is not only failing to exercise ordinary care for his own safety but indeed has abandoned all care or concern for his safety.
As to the degree of the defendant's intoxication, the plaintiff testified that between noon and about 5:30 on the afternoon prior to the wreck he and the defendant had two or three drinks of liquor at one place, a can of beer at another place and two or three more drinks before eating dinner. The plaintiff testified "I could tell there was a difference in him . . . he appeared to be feeling pretty good. Well, I wouldn't say we were dog drunk." As to the manner of the defendant's driving, the plaintiff testified that he had been driving around 75 or 80 miles per hour during the day and that he was going 80 miles per hour at the time he hit the barricade. The plaintiff testified that at no time did he protest the manner in which the defendant was driving and that just prior to the accident "he must have been going 80 miles per hour at least. I did not pay any attention to that barricade. I was lighting a cigarette."
This evidence demanded a finding that the defendant was in a discernibly intoxicated condition, that plaintiff knew of this condition when he entered the defendant's car, that he knew the defendant was driving in an improper and illegal manner, and that he made no protest whatsoever concerning either the defendant's intoxicated condition or the manner in which he was operating his vehicle.
The evidence in this case relating to the failure of the plaintiff to exercise ordinary care for his own safety is much more favorable to the defendant than the facts presented in Staples v. Brown, 96 Ga. App. 176, supra, under which this court held that the defendant was entitled to a verdict non obstante veredicto. The facts in the Staples case, as recited by Judge Nichols in the opinion, showed that the plaintiff knew the defendant was drinking and under the influence before he got into the vehicle, knew the defendant was not driving properly before they traveled very far, and that though he intended to ask defendant to let him drive he never had the opportunity before the wreck occurred.
Every element of that case exists here, plus the uncontradicted testimony of the plaintiff that just prior to the wreck with defendant driving 80 miles per hour, he calmly lit a cigarette and made no effort in any manner to protest the manner and speed of defendant's driving.
The cases of Evans v. Caldwell, 45 Ga. App. 193, supra, and Mann v. Harmon, 62 Ga. App. 231, supra, so strongly relied upon in the majority opinion, are clearly distinguishable on their facts. In the Evans case, the plaintiff asked the defendant to slow down and only re-entered the car after defendant's promise to drive more carefully. As to the defendant's intoxication, the plaintiff testified "he seemed to have had something to drink." This is a far cry from the facts in the instant case.
Again, in the Mann case, there was testimony that defendant's drinking had not affected his driving, that plaintiff asked defendant to slow down and that "he then drove all right"; that after a stop plaintiff re-entered the vehicle and again protested when defendant reached an excessive speed just prior to the accident.
In both of the cases referred to above, the evidence of intoxication was much weaker than exists here, and the plaintiff was at least concerned enough with his own safety to protest to the defendant driver prior to the wreck. Such situations make it clearly within the province of the jury to determine whether or not the plaintiff was exercising ordinary care for his own safety.
In clear and palpable situations such as existed in the Staples case and such as exist in this case we can only hold that as a matter of law the plaintiff failed to exercise ordinary care for his own safety, thus barring his recovery. The judgment should be reversed.
I am authorized to say that Felton, C. J., Frankum and Eberhardt, JJ., concur in this dissent.