Cowgill v. Boock

• Decision Date: 16 May 1950
• Citation: 189 Or. 282,218 P.2d 445
• Parties: COWGILL v. BOOCK.
• Court: Oregon Supreme Court

218 P.2d 445

189 Or. 282

COWGILL v. BOOCK.

Supreme Court of Oregon, En Banc.

May 16, 1950

George H. Fraser, of Portland, argued the cause for appellant. With him on the briefs were Hart, Spencer, McCulloch, Rockwood & Davies, Hugh L. Biggs, and Manley B. Strayer, all of Portland.

Orval N Thompson, of Albany, argued the cause for respondent. On the brief were Weatherford & Thompson, and Willis, Kyle & Emmons all of Albany.

BELT, Justice.

This is an action to recover damages resulting from the death of Billie Eugene Parker, a minor seventeen years of age, alleged to have been caused by the gross negligence and intoxication of his father, the deceased George W. Parker, while driving a Plymouth pick-up truck on the South Santiam highway. The cause was submitted to a jury and a verdict returned in favor of the plaintiff-administrator in the sum of $5,000.00.

The defendant-administrator appeals, assigning error in the denial of the motions for a nonsuit and a directed verdict. It is defendant's contention that the action can not be sustained for the reasons: (1) An unemancipated minor child can not maintain an action against his parent for a personal tort. (2) There is no substantial evidence tending to show that the decedent-father was guilty of negligence, gross negligence or intoxication which was the proximate cause of the death of his son.

In view of the demurrer to the evidence, the statement of the facts will be made in the light most favorable to the plaintiff. It is elementary that plaintiff is entitled to the benefit of every reasonable intendment of the evidence. The defendant offered no evidence.

On August 14, 1945 the deceased George W. Parker resided with his wife and nine children at Madras in eastern Oregon about nine miles north of Culver. He was a logger and for a few months prior to the accident had lived with his family at Sweet Home in western Oregon. The father accompanied by his brother and his son Billie, drove from his home at Madras to Culver, where his friend Bert Clayton operated a tavern. It was 'V. J. Day' and they were celebrating. Clayton refused to sell the father any beer because the latter was intoxicated to such an extent that he staggered and had some 'difficulty controlling his movements'; his eyes were bloodshot; and he was 'thick tongued.' Upon the refusal of Clayton to sell him beer, Parker became angry and said: "I don't have to drink your beer; I have two quarts of whisky in the car." Parker and his brother went to the car and proceeded to drink whisky. They finished the 'little bit' in the one-fifth bottle and then opened the second one. Clayton said George Parker and his brother had three drinks of whisky. The son Billie did not drink. George Parker wanted his friend Clayton to go to Sweet Home with him but he refused. According to the witness Clayton, Billie told his father that he did not want to go to Sweet Home, but the father said: "Billie, you are going; get in the car." Billie wanted to drive but his father said "No, I will do the driving of this car; you get in on the other side." Mrs. Bertha Clayton testified that she heard George Parker say that he was going to Sweet Home and that he asked her husband to go with him. She said that the boy asked 'if he couldn't stay with us. He didn't want to go with his father.' She heard the father say to Billie: "You are going with me." Mrs. Clayton also testified that George Parker and his brother were both 'quite intoxicated' but that Billie did not have a drink.

The Parkers left Culver about 9:30 o'clock in the evening for Sweet Home on the west side of the Cascade mountains. The father was driving, his brother was in the middle, and Billie was on the right side of the seat. This was the last time they were seen alive.

Three days later the deputy coroner of Linn county and a State Police officer found their bodies in the overturned pick-up truck partly submerged in the water of the South Santiam river five miles east of Upper Soda and about one hundred miles from Culver. The car had gone over an almost perpendicular bluff 120 feet high. When the body of George Parker was removed from the car, it was on the left side of the seat; the body of the brother was in the middle; and the body of Billie was on the right side of the seat. It will be recalled that this was the same position in the car that they were in when they left Culver. The watch in the father's pocket--which was under water--had stopped at 12:10. A bottle of whisky about one-half full was found in the car. The coroner, after having qualified as an expert witness, testified that in his opinion the bodies had been dead at least two days.

Mr. Wayne Huffman, a State Police officer who was with the coroner and investigated the wreck, testified that the accident occurred on a downhill 'S' curve in the mountainous section of the highway, which ran in an easterly and westerly direction. The officer testified that the vehicle had run on the shoulder on the north side of the highway for a distance of 50 feet and then went into a small drainage ditch where it traveled for 100 feet and up against the side of a high bank. After leaving the ditch, the vehicle skidded for a distance of 86 feet diagonally across the dry pavement. The officer stated that at the end of the '86 feet of skidmarks,' there were 'gouge marks' in the pavement indicating that the vehicle had rolled over for a distance of 45 feet before it went 'down the bank and into the river.' Two tires were 'deflated.'

It is alleged in the complaint that the decedent George W. Parker 'became grossly intoxicated and wholly incompetent to drive an automobile and did by invitation, threat, and command, induce and coerce his said son, Billie Eugene Parker, to enter an automobile' and accompany him over the Santiam highway to Sweet Home. It is further alleged, in substance, that while the decedent George Parker was in such drunken condition, he continued to drive the car 'upon a dangerous and curved highway' at a high and dangerous rate of speed and without having it under control. It is further alleged that such negligence was the proximate cause of the death of Billie Eugene Parker.

This action was brought under the Wrongful Death Statute, § 8-903, O.C.L.A. At common law there was no remedy by way of a civil action for the death of a human being, and a cause of action arising out of an injury to a person died with the person. McClaugherty v. Rogue River Electric Co., 73 Or. 135, 140 P. 64, 144 P. 569; Perham v. Portland General Electric Co., 33 Or. 451, 53 P. 14, 24, 40 L.R.A. 799, 72 Am.St.Rep. 730. The purpose of the statute was to give redress for an injury where none existed at common law. The statute created a new right of action for wrongful death with the limitation, '* * * if the former [decedent] might have maintained an action had he lived, against the latter [wrong-doer], for an injury done by the same act or omission.' If the decedent Billie Parker could have maintained an action, had he lived, against his father for an injury 'done by the same act or omission,' then the present action will lie; otherwise, it can not be maintained. Perham v. Portland General Electric Co., supra; 16 Am.Jur., Death, 61 § 82. In view of this statutory limitation, we must test the instant cause by the same legal principles that would have been applicable if Billie Parker, had he lived, brought an action against his father for personal injuries caused by gross negligence or intoxication as alleged in the complaint. In other words, if we assume that this minor child was maimed or crippled for life as a result of the gross negligence or intoxication of the father, as shown by the evidence in this case, could the action be maintained?

There is some substantial evidence to support the allegations of gross negligence and intoxication. When George Parker in his drunken condition drove this automobile, he was engaged in an unlawful act and had utter disregard not only for his own safety but for the safety of those who were riding with him. Section 115-318, subd. (a), O.C.L.A., provides: 'It shall be unlawful * * * for any person * * * who is intoxicated or under the influence of intoxicating liquor * * * to drive any vehicle upon any highway, street or thoroughfare within this state.'

Subd. (c) provides: 'If the death of any human being shall be caused by the negligent operation of any vehicle contrary to this act by any person while intoxicated or under the influence of intoxicating liquor or narcotic drugs, such operator of such vehicle shall be deemed guilty of manslaughter and, upon conviction, shall be punished as provided by existing law relating to manslaughter.'

In State v. Lockwood, 126 Or. 118, 268 P. 1016, the defendant was charged with involuntary manslaughter on account of her having killed a pedestrian while driving an automobile when intoxicated. She denied any knowledge of having struck the young boy whom she killed, yet the conviction was sustained.

This case is just another example of a terrible tragedy resulting from the excessive use of intoxicating liquor while driving an automobile. Of course, the father did not actually intend to kill his son, but he was nevertheless responsible for the consequences which flowed from his wrongful act. It is presumed that a person intends the ordinary consequences of his voluntary act. The father knew or ought to have known of the danger in driving at a high speed at nighttime over this mountainous highway when he and his brother were both drunk. The boy no doubt realized the danger of riding with his father under the circumstances. It was against his will to get into the car, but he did so in obedience to his parent. He had good reason to stay with the Claytons at...