Basham v. Terry
| Decision Date | 10 March 1958 |
| Docket Number | No. 4764,4764 |
| Citation | 102 S.E.2d 285,199 Va. 817 |
| Court | Virginia Supreme Court |
| Parties | JOSEPH C. BASHAM v. LORENA M. TERRY, ADMINISTRATRIX, ETC. Record |
R. S. Kime and W. H. Jolly, for the plaintiff in error.
Jack B. Coulter (E. Griffith Dodson, Jr.; Dodson, Pence & Coulter, on brief), for the defendant in error.
On May 13, 1956, an automobile operated by Joseph C. Basham in which his father-in-law, John M. Terry, was a guest passenger, collided in the city of Roanoke, Virginia, with a parked car. Injuries were inflicted upon Terry from which he died fifteen hours later. Lorena Terry, a daughter of decedent, qualified as administratrix of his estate, and in an action brought against Basham under §§ 8-633 and 8-634, Code 1950, she recovered a verdict for $25,000.
No apportionment of damages was made by the jury among the statutory beneficiaries, i.e., the widow and five children. With the approval of counsel, the court heard evidence and made the apportionment. It was determined and ordered that the recovery be paid to the administratrix and after payment of 'attorneys' fees, costs and expense * * *', the net balance be distributed to Lelia C. Terry, widow of decedent, and judgment was entered accordingly. Sections 8-636, 8-638, Code 1950.
Errors relied upon by Basham are (a) the court's refusal to submit to the jury the issue of whether or not decedent was guilty of contributory negligence, and (b) its rulings on the admissibility of evidence offered by Basham and testimony sought to be elicited from witnesses on cross-examination by him.
Before any testimony was offered, an informal pretrial conference was held. The question of whether or not the condition of decedent's widow, a patient at Catawba Sanatorium suffering from cancer and tuberculosis, and the condition of one of his sons who had been permanently injured in an accident in 1955 and was an invalid in the Veterans Administration hospital at Roanoke, should be admitted in evidence before the jury was discussed at length. Discussion was also had as to whether the financial status of the widow should be admitted in evidence and whether the jury or the court should apportion any recovery obtained. The court ruled that the administratrix could show where decedent's wife and son were, that decedent had visited them from time to time and that the widow had been dependent upon him for support. The deplorable physical condition of the widow and son, or the expenses incurred because of their sickness and injuries, would not be admitted in evidence. Matthews v. Hicks, Adm'r., 197 Va. 112, 87 S.E.2d 629. This ruling was acquiesced in by counsel, and it was decided that if a verdict was rendered for plaintiff, the court would hear evidence and make the apportionment to the statutory beneficiaries.
On the morning of the tragedy, Basham called at Terry's home in the city of Roanoke to take him to the Veterans Administration hospital in Roanoke county to visit Terry's son. About 9:30 a.m., after their visit at the hospital, Basham drove his car in a 25 mile speed zone at a speed estimated by witnesses to be from 60 to 85 miles an hour. His vehicle was seen to swerve first to the left and force the driver of an oncoming car from the street to avoid a collision. Basham's car then swerved to the right and left the hard surface of the road, then turned left onto the road, and then back off the right edge of the hard surface onto the shoulder of the road where it struck the rear of a Cadillac car parked four to six feet from the edge of the hard surface. This parked car was in reverse gear, with its emergency brake set, yet the force of the impace knocked it 66 feet, and both vehicles were demolished.
J. D. Smith, a police officer, saw the collision, went immediately to the scene, and then called an ambulance to take the injured men to a hospital. He followed on to the hospital, and about 10 a.m., he interviewed Terry and Basham. There Terry told Smith that Basham had picked him up at his home at approximately 5 a.m., and they had stopped at several places for drinks and beer. Basham told Smith that he had picked Terry up about 6 a.m., and said that 'they had had drinks' and that he, Basham, had started drinking the night before. The officer also testified that he could 'smell the odor of alcohol on the breath' of Basham and Terry.
Shortly before the accident and while at the Veterans hospital about 8:30 a.m. Basham and Terry talked to Walter Talliferro and George Beckner, two of Terry's friends. Talliferro testified that he noticed a 'kind of weak odor of alcohol' while talking to Basham and Terry but he did not indicate whether the odor was on the breath of one or both. Beckner also said that he smelled the odor of alcohol when he talked with Basham and Terry. Several witnesses who went to the scene of the accident immediately after the collision and talked with Basham and Terry noticed no odor of alcohol, and Dr. Keeley, who saw both men at the hospital about 1:30 p.m. and operated upon Terry at 2 p.m., said that he noticed no odor of alcohol. Nor did Dr. Parfus who admitted Terry to the hospital about 9:50 a.m., examined and treated him for shock, and testified as to his then condition, indicate that he noticed any odor of alcohol upon decedent. In short, some witnesses who came in contact with Terry and Basham before and after the accident smelled the odor of alcohol on their breaths, yet some who talked with them immediately after the accident did not. No witness stated or indicated that he observed anything about the manner, disposition, speech, movements, appearance or behavior of either Basham or Terry prior to or after the accident to indicate that they were under the influence of intoxicants. Section 4-2(14), Code 1950; Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614.
Basham did not testify and no evidence was offered by him as to how or why the accident happened or as to whether or not he or Terry had partaken of intoxicating drink before the accident. The case went to the jury solely upon evidence given by witnesses for the administratrix.
Counsel for Basham contend that the evidence was sufficient to prove that their client was under the influence of intoxicants, that Terry knew or should have known that fact, and that shortly before the mishap he had opportunity to decline to ride with Basham and was guilty of contributory negligence by continuing to ride with him until the tragedy occurred. Yorke v. Maynard, 173 Va. 183, 3 S.E.2d 366, is cited and relied upon.
An amendment sought by Basham, but refused, to instructions given at the instance of the administratrix, and instructions A and C offered by Basham, but refused, would have put to the jury the issue of whether or not Terry was guilty of contributory negligence. The court declined to make the amendment and refused instructions A and C because, in its opinion, the evidence was insufficient to support a finding that Basham was under the influence of intoxicants or that Terry knew or ought to have known that Basham was under the influence of intoxicants if such was in fact his condition. In commenting on instructions A and C, the court said:
'* * * [You] have no evidence in this case showing that the drinking affected in any particular the driving of Basham.
* * *
'You haven't shown that he was affected in any particular, or that his speech, muscular movements or appearance was in any degree affected by the drinking. In fact, you haven't shown anything.
The mere odor of alcohol on one's breath is not sufficient to prove intoxication. Burks v. Webb, Administratrix, 199 Va. 296, 99 S.E.2d 629; Caldwell v. Parker, 191 Va. 471, 62 S.E.2d 34.
In the recent case of Bogstad v. Hope, 199 Va. 453, 458, 100 S.E.2d 745, the driver admitted that he had drunk alcoholic beverages shortly before the accident. There was also a strong and heavy odor of alcohol on his breath, his eyes were somewhat blurred and he 'kept mumbling a few words and kept talking of being sorry.' We held that the evidence was sufficient to support a finding of intoxication. The proof there, as in Yorke v. Maynard, supra, measured up to the definition of 'intoxicated' in § 4-2(14), and as defined in Gardner v. Commonwealth, supra. Here, the evidence only proves that there was an odor of alcohol on Basham's breath and Terry's breath before and after the accident. None of the many witnesses, some of whom were in close contact with Basham and Terry shortly before and after the collision, observed anything in their manner or conduct to indicate that either was under the influence of intoxicants. Likewise significant is the circumstance that Basham did not testify, and if he were in fact intoxicated, he could have said so.
We find no error in the court's refusal to submit to the jury the issue of contributory negligence.
In his opening statement one of counsel for the administratrix stated that decedent had retired from employment before the accident and had been helping in the house with 'the washing' and cooking; that he gave considerable time to working in a large vegetable garden for the family and in visiting his wife at Catawba Sanatorium and his son at the hospital. He called attention to the fact that on the morning of the tragedy just before Terry and Basham arrived at the Veterans hospital, they stopped at 'Ken's place' and 'had a beer,' thus conveying to the jury the idea that at times decedent might partake of mild intoxicants, though he did not indicate that decedent...
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