Boggs v. Butler

• Decision Date: 22 September 1937
• Citation: 176 So. 174,129 Fla. 324
• Parties: BOGGS et al. SAME v. BUTLER. SAME v. WHITTLE.
• Court: Florida Supreme Court

176 So. 174

129 Fla. 324

BOGGS et al. SAME v. BUTLER. SAME v. WHITTLE.

Florida Supreme Court, Division A.

September 22, 1937

Error to Circuit Court, Jackson County; Amos Lewis, Judge.

Separate actions by B. J. Butler and by Henry C. Whittle against Albert J. Boggs and others, which were by consent tried together. From judgment for the plaintiffs, defendants bring separate writs of error, which were reviewed on one transcript by stipulation.

Affirmed.

COUNSEL

James H. Finch, of Marianna, and H. V. McClellan, of Blounstown, for plaintiffs in error.

Carter & Pierce, of Marianna, and Gregory & Towles, of Quincy, for defendants in error.

OPINION

TERRELL Justice.

The record in this case discloses that Albert J. Boggs and Robert Peacock, plaintiffs in error got aboard a Ford V-8 automobile at Blountstown on the morning of January 17, 1935, and journeyed to Marianna, about twenty-five miles distant. They remained at Marianna for several hours, then drove up near the Alabama line, about twenty miles, and returned to Marianna late in the afternoon of the same day. Both men were drinking, and while the automobile belonged to Boggs, it was driven at intervals during the day by Boggs and Peacock. When they left Marianna going toward the Alabama line, Boggs was drunk, and when they returned to Marianna both of them were drunk. Boggs had 'passed out' and was on the back seat unconscious.

They left Marianna over Main street about 7:30 o'clock in the evening, Peacock driving, but before they were out of town he (Peacock) ran the automobile into an automobile driven by B. J. Butler in which Butler's wife and children and Henry C. Whittle and wife were traveling. As a result of the collision, Mrs. Butler was killed and Whittle was seriously injured. Butler and Whittle brought separate common-law actions against Boggs and Peacock, which were by consent tried together before the same jury. The trial resulted in a verdict and judgment for $10,000 in favor of Butler and $5,000 in favor of Whittle.

From these judgments separate writs of error were sued out, but by stipulation of counsel, it was agreed that the two judgments be reviewed on one transcript. It is apparently admitted that as to Peacock the judgments are sustained by the evidence but as to Boggs it is contended that they are erroneous and should be reversed.

Boggs contends that the judgments as to him should be reversed because he was drunk and incapable of either expressly or impliedly giving consent to Peacock to drive his automobile at the time of the accident.

His defense savors of that of the young man in an early Florida case who contributed to the death of his parents but later, in an action affecting the tragedy, pleaded with the court to be merciful to him because he was an orphan. It also reminds us of the fellow who ran over the stop light, but on being pursued and captured by a cop, his wife entreated the latter to pay no attention to him because he was drunk.

It would be a base and unjust distortion of the law to permit a defense of this kind to prevail. Boggs was on notice when he left Blountstown that he was traversing the public highways with a dangerous instrumentality. To hold that this notice ceased when he became drunk and unconscious...