Opinion
44376.
ARGUED APRIL 7, 1969.
DECIDED JUNE 13, 1969. REHEARING DENIED JULY 3, 1969.
Action for damages. DeKalb Superior Court. Before Judge Thibadeau.
Henning, Chambers, Mabry Crichton, Eugene P. Chambers, Jr., for appellant.
Raymond A. Cunningham, for appellee.
1. Knowledge on the part of a guest passenger that the driver of the automobile is under the influence of intoxicating beverages is not, able to drive safely so as to make the passenger assume the risk barring recovery against the driver.
2. There was a material issue of fact as to whether the defendant driver was within the scope of his employment at the time the automobile collision occurred.
ARGUED APRIL 7, 1969 — DECIDED JUNE 13, 1969 — REHEARING DENIED JULY 3, 1969 — CERT APPLIED FOR.
The plaintiff, Raymond Lawrence, filed a claim seeking to recover for personal injuries which he allegedly sustained in an automobile collision, when the vehicle in which he was a guest passenger struck a telephone pole and overturned. The automobile was being driven by the defendant Phillip Trussell and was owned by the defendant, Huddle House, Inc.
The defendants filed motions for summary judgments.
The plaintiff's deposition states that: he came to Atlanta on the day before the occurrence complained of to discuss employment with the defendant, Huddle House, and that he arrived at approximately 9 p. m. and met with Trussell, an employee of the defendant Huddle House; at about 10 p. m. he left the Suburban Plaza location with Trussell to accompany him on making rounds; at approximately 1 a. m., he and Trussell purchased a six-pack of beer and a half pint of peach brandy; Trussell drank a swallow of peach brandy and used a beer as a chaser; he and Trussell checked on one more Huddle House Restaurant on Moreland and then went up the street to a bar where they ordered beer; he though Trussell drank all of his; they left there and went to the Moose Club where Trussell bought two cans of beer for himself and two cans for plaintiff; they left two of the cans of beer there; they then left the Moose Club and went to someone's house to play poker; while playing poker, Trussell and the other players continued to drink beer; at approximately 4 or 5 that morning another fellow showed up with a six-pack of beer and they also drank this six-pack of beer and that Trussell was feeling pretty good; about 5 a. m., they decided to call it quits; he consumed approximately 3 beers and Trussell drank a whole half pint of peach brandy, and probably as many as 6 beers, but he could not say if it was more than six; when Trussell left, he was feeling good and was as high as a kite; that he was feeling the effects of beer but wasn't drunk.
The plaintiff further related that: after leaving the poker game Trussell drove the automobile into the curb causing a flat tire; they continued to drive on the flat tire because Trussell stated he could not change the tire because the spare was flat; Trussell drove the automobile on the flat tire to a service station; in the process Trussell drove through a red light; after getting the tire repaired he got in the driver's seat and he and Trussell had a discussion about who should drive; Trussell said that if anything happened to the automobile the company would not cover the damage and he did not argue with him, he just slid over; Trussell drove the automobile very fast to Trussell's home; trussell "whipped it in the yard, almost on two wheels"; they went into the house and "freshened up with a little water, and I believe he changed clothes"; they stayed there for ten or fifteen minutes; then they drove to a drug store where they had a cup of coffee and Trussell had a couple of Alka-Seltzers; a policeman came in and they left.
After they left the drug store the plaintiff stated that: Trussell was driving very erratically; while people that worked for Trussell were afraid to ride with him because of the way he drove, he was not because that was the way he drove and Trussell had always seemed to drive "pretty straight" to him "before the accident occurred, I mean, never winding it out through the barrel, and running red lights"; the collision took place at approximately 7 a. m.; after they left the drug store, they almost ran off the road two or three times and he reached over and took the wheel and straightened the automobile; just prior to the collision he saw Trussell had his hands in his lap and the car seemed to be going toward the right ditch; he told Trussell "Say, wake up, you are going to run this car off the road again"; after that he was a complete blank.
On the issue of whether he knew Trussell was intoxicated at the time of the collision, the plaintiff testified: "And we started up Ponce de Leon toward Suburban Plaza, and he said, `see that light?' and he had it in third gear and it was just winding it out, the light was red when he went through it. When we got to the other one, it was yellow, but we were still winding it out in third gear as tight as the motor would go. Q. Was he still under the influence of alcoholic beverages? A. I thought he was getting in pretty good shape, you know, since freshening up a little bit and had coffee and Alka-Seltzer, and then he set his hands down on his lap and let the car go by itself."
In this connection he further testified: "Q. Now, was it your opinion that he was intoxicated the night this wreck took place? A. At the time the wreck took place? Q. Right before. A. How long before? Q. Well, you said, I believe you indicated you all left the poker party at about 5. A. Right. Q. And he was intoxicated at that time; is that correct? A. He was pretty well intoxicated at that time. Q. He had six or ten beers plus a half pint of peach brandy and you knew that, didn't you? A. Yes. Q. And he was driving very erratically, to say the least? A. Yes, and I also pointed out the fact that I tried to take the car and drive it and had no other way of getting back to my car. Q. I understand. A. After he had coffee and after he had freshened up a bit, he seemed to be all right. He seemed 100 percent better than when he first started out from the house when we left."
Trussell's deposition disclosed that: he had had enough to drink to be intoxicated that night; the cause of the collision was not as the plaintiff testified; he had both hands on the wheel just prior to the collision; he was not doing anything out of the ordinary with the wheel; there was nothing out of control; the automobile was traveling at approximately 40 miles per hour; the plaintiff jerked the wheel causing the automobile to leave the road. In answer to the question of whether there was any reason for the plaintiff jerking the wheel he testified that just past the intersection they were approaching the road changes from four lanes into two lanes and "It would be safe to say that if he had been up all night, same as I was, if he was a little tired, if he just looked up and looked — first thing would come to his mind at all would be I was leaving the road, you see, then he jerked the wheel to the left in such a manner — it is a direct steering, it isn't like a regular car."
The motions for summary judgments were overruled. The defendants appealed and the case is here for review.
1. The defendants contend the motions for summary judgment should have been sustained because the plaintiff had assumed the risk of riding in the automobile which was operated by one who was obviously and palpably under the influence of intoxicating liquors. They cite as authority for that position Davis v. Farrell, 118 Ga. App. 690 ( 165 S.E.2d 313).
In Stukes v. Trowell, 119 Ga. App. 690 ( 168 S.E.2d 616), it was held: "Questions necessitating a decision as to whether a given state of facts shows that lack of ordinary care for one's own safety which will bar recovery (within which category are placed those situations amounting to the assumption of the risk involved) or only that comparative negligence which will reduce it are generally for the jury. `In this State the doctrine of comparative negligence prevails and it is not all negligence which contributes to an injury that will necessarily prevent a recovery... If a driver, from intoxication, is in a condition which renders him incapable of operating [the vehicle] with proper diligence and skill, and this is known or palpably apparent to one entering the car, this is a fact that may be proved for the consideration of the jury.' Powell v. Berry, 145 Ga. 696, 700 ( 89 S.E. 753). Following Powell, this court held in Sparks v. Porcher, 109 Ga. App. 334, 340 ( 136 S.E.2d 153): `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 Stukes case points out that if there is anything in Davis v. Ferrell, 118 Ga. App. 690, supra, and Freeman v. Martin, 116 Ga. App. 237 ( 156 S.E.2d 511), contrary to what is held in Powell v. Berry, supra, it must yield to the Supreme Court decision.
In the case sub judice there was evidence that: the collision occurred approximately two hours after the driver, Trussell, had anything intoxicating to drink; during that period he had freshened up and had coffee and Alka-Seltzer; the plaintiff testified: "After he had coffee and after he had freshened up a bit, he seemed to be all right. He seemed 100 percent better than when he first started out from the house when we left."
Under the circumstances of this case it would be a question for the jury to determine whether the plaintiff knew or should have known that the defendant driver was under the influence of intoxicating beverages to the extent that he was not able to drive the automobile with ordinary efficiency so as to make the plaintiff guilty of assuming the risk. As was stated in the Stukes case, to hold the contrary, except in extreme circumstances, would be to hold that the driver must be rewarded for his intoxication by insulating him from suit by the guest passenger.
Moreover, there was a conflict in the evidence as to the proximate cause of the collision. The plaintiff testified the collision occurred because Trussell took his hands off the wheel and put them in his lap. However, Trussell testified: that he had both hands on the wheel and was not doing anything out of the ordinary; that the automobile was traveling at approximately 40 miles per hour and there was nothing out of control; that the cause of the collision was that the plaintiff jerked the wheel causing the automobile to leave the road.
Therefore, there was a question for the jury as to whether Trussell's intoxication was the proximate cause of the collision or whether it was due to the plaintiff's action in jerking the wheel and if so whether such act constituted negligence.
2. The remaining question for determination is whether the defendant Trussell was in the scope of his employment at the time of the collision. The plaintiff testified: that after they left the drug store he suggested that Trussell take him to his automobile which was at Suburban Plaza and Trussell agreed; that rather than stopping at Suburban Plaza Trussell went on past and started in the direction of Tucker; that "I remembered he had to pick up and relieve the man in Tucker"; that the collision occurred at approximately 7 a. m.
In regard to why he did not turn at the intersection but proceeded in the direction of Tucker, Trussell testified: "A. I don't remember wanting to go to Tucker for anything. If I had to do something in Tucker, I don't recall what I had to do at that time. If it was getting close to 7 o'clock, I would be going to pick up a car, then I would go back to the office at 8 o'clock. Q. Were you all going out there for any other reason? A. No, sir. Q. Were you all going to find some girls? A. No, sir. Q. Were you going to the store in Tucker? A. No. Sir, Q. You weren't going to the Huddle House store in Tucker? A. No. Sir. Q. Will you explain why you went over Scott Boulevard? A. No, sir; I can't."
On this same issue he further stated: "Q. All right. Now, was it your intention to go to work right before the accident, or was it your intention to take him to get his car, or just tell us exactly what that was. A. My intention was right prior to the accident happening, was to take him to get his car — and to get his car and I could go home or go into the office. If I went home, I probably, before going to the office, would have called the stores and see if everything was all right and told them I would be in — from my home. In his statement Mr. Lawrence made, he said something, that I was supposed to have gone on this — Tucker, that I was supposed to have gone there, that was the reason that I was heading in that direction. I don't know that to be true or not. As far as my own self goes, I believe that I didn't have any reason to go there. Q. The purpose of your driving was to take him to get his car? A. Yes, sir."
"No duty devolves upon the opposing party to produce rebuttal evidence unless the movant first makes a prima facie showing of right to a summary judgment. Durrett v. Tunno, 113 Ga. App. 839, 842 ( 149 S.E.2d 826); Benefield v. Malone, 110 Ga. App. 607, 610 ( 139 S.E.2d 500). `In order to pierce allegations of material fact contained in the plaintiff's petition, the evidence offered by defendant on motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. It is not sufficient if the evidence merely preponderates toward defendant's theory rather than plaintiff's or if it does no more than disclose circumstances under which satisfactory proof of plaintiff's case on trial will be highly unlikely.' Watkins v. Nationwide c. Ins. Co., 113 Ga. App. 801, 802 ( 149 S.E.2d 749)." Shadix v. Dowdney, 117 Ga. App. 720 ( 162 S.E.2d 245). "`The burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1 ( 126 S.E.2d 442).' Internat. Brotherhood v. Newman, 116 Ga. App. 590, 592 ( 158 S.E.2d 298)." Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 ( 160 S.E.2d 672).
Trussell's testimony was contradictory and ambiguous. He testified that: "I don't remember wanting to go to Tucker for anything. If I had to do something in Tucker, I don't recall what I had to do at that time"; that he was not going to the Huddle House in Tucker; that he could not explain why he went in the direction of Tucker; that he did not know if the plaintiff's statement that he was supposed to go to Tucker was true or not.
Trussell's testimony did not unequivocally refute the allegation of the petition that he was within the scope of his employment at the time the collision occurred. From his testimony it is not clear whether he was in fact en route to Tucker and if so for what reason.
There was no burden on the plaintiff, in opposition to the motion for summary judgment, to prove that Trussell was within the scope of his employment until this allegation had been pierced. There remained a genuine issue as to this material fact.
The denial of the motion for summary judgment was not error.
Judgment affirmed. Felton, C. J., and Pannell, J., concur.