Crea v. Hall

• Decision Date: 21 June 1963
• Docket Number: No. 38697,38697
• Parties: Marjorie CREA, Appellant, v. Joseph HALL, Respondent.
• Court: Minnesota Supreme Court

Page 610

122 N.W.2d 610

265 Minn. 554

Marjorie CREA, Appellant, v. Joseph HALL, Respondent.

No. 38697.

Supreme Court of Minnesota.

June 21, 1963.

Syllabus by the Court.

Whether a new trial should be granted upon proof that a witness who gave testimony indicating that a car driver sued for personal injuries was intoxicated immediately prior to the inception of the trip during the course of which the accident occurred changed or altered his statements on this point subsequent to the trial was, under the facts of this case, a matter within the sound discretion of the trial court even though the jury returned a verdict for the defendant apparently on the theory that the intoxication described by the witness must have been apparent to the plaintiff who therefore assumed the risk of riding with him.

Hyman H. Cohen, St. Paul, for appellant.

Tyrrell, Jardine, Logan & O'Brien, St. Paul, for respondent.

SHERAN, Justice.

The appeal is from an order of the district court denying plaintiff's motion for judgment notwithstanding the verdict or a new trial in an action for personal injuries.

On Monday, May 19, 1958, at about 7:30 p.m., plaintiff, Marjorie Crea, sustained personal injuries when an automobile, owned and operated by defendant, Joseph Hall, in which she was riding as a passenger ran off a rural road in Baldwin Township, Sherburne County, en route from Sandy Lake to Princeton, Minnesota. Defendant, having been sued for the resulting damage, alleged that the plaintiff assumed the risks and hazards of riding as a passenger in his automobile at the time and place of the accident with full knowledge of the risks and dangers involved. At the time of trial evidence was introduced adequate to support a jury finding that Hall was intoxicated at the time and place of the accident and that this state or condition was apparent to plaintiff at the inception of the trip terminated by the accident.

Subsequent to the trial one of defendant's witnesses, Roger Marturano, made statements inconsistent with his testimony given at the time of the trial on the issue of intoxication. It was on this 'recantation,' in part, that plaintiff based her motion for a new trial, the denial of which gives rise to the only legal issue presented for consideration on this appeal. In the language of plaintiff, it is this:

'In a negligence action for personal injuries by a passenger against her driver, where the paramount issue is assumption of risk based upon alleged intoxication of the driver, should a new trial be granted when the only independent witness on that issue substantially recants his testimony pertaining to the intoxication of the driver?'

These facts will be helpful in visualizing the evidentiary context in which the problem occurs: Defendant is a resident of St. Paul, where he operates a restaurant and bar. For approximately 6 months prior to the accident, plaintiff had been in charge of the restaurant. Prior to Monday, May 19, 1958, defendant and three friends had been 'weekending' at the defendant's cottage located on Sandy Lake about 16 miles from Elk River. It was the intention of the group to return to St. Paul on the morning of Monday, May 19, but for some reason the automobile they were driving could not be started and it was taken to Zimmerman, Minnesota--midway between Elk River and Princeton--for repairs. While the car was being fixed defendant and his companions adjourned to Marty's Bar located in that village. During the afternoon of May 19, plaintiff came to Zimmerman from St. Paul by cab at the request of defendant and met him at the bar. After remaining in Zimmerman for a short period of time, plaintiff and defendant drove together to his cabin, which is located about 6 miles from Zimmerman. They were met at the cabin by the three friends who had been with defendant previously and who were transported by Marturano, who was the proprietor of Marty's Bar and also a deputy sheriff of the county. Upon arriving at the cabin defendant went to sleep. Plaintiff and the others had something to eat. At about 7:30 p.m., plaintiff and defendant left the cabin and started to drive toward Princeton on a sandy, graveled road. Proceeding on this road in a northerly direction Hall came to a T-intersection. He applied his brakes, tried to turn to the left, but lost control of the car which left the road, rolled over, and caused the injuries for which the present action was brought.

Plaintiff testified at trial that she did not see Hall consume any intoxicants at Marty's Bar. She claimed she did not smell alcohol on him or notice anything peculiar about the way he was acting as they drove from Marty's Bar to the cabin. She said she did not observe Hall drink any intoxicants while at the cabin and that on the ride from the cabin to Princeton she noticed nothing peculiar about the way he looked, acted, or drove. Her knowledge of Hall's condition was a fact question for the jury in light of other testimony indicating such proximity to him as would give rise to knowledge of his condition if he was in fact intoxicated.

Defendant testified that he and three friends arrived at Zimmerman about 8 a.m. on the morning of the accident and that he had not been drinking prior to that time. He went to Marty's Bar around 9 or 9:30 in the morning and proceeded to drink brandy with water on the side. At about 2 in the afternoon he started to feel a little 'woozy.' At about 3 p.m. he was 'fairly well intoxicated.' He testified that during the course of the day at Marty's Bar he had consumed from 40 to 50 drinks. (In a pretrial deposition he said he consumed about 60 to 70 drinks.) He claimed that he stopped drinking at Marty's Bar at about 5 in the afternoon. The amount of time spent by him in the liquor store would have been, according to his testimony, approximately 8 hours. Defendant claimed that he had no recollection of who was riding with him from Marty's Bar to the cabin; whether the companions who met him at the cabin were there when he arrived or came later; or of what occurred at the cabin. In short, defendant testified that he was very drunk.

At the time of the trial Marturano testified that he had first observed defendant between 4 and 5 p.m. on May 19 and served him brandy. After approximately 1/2 hour the group, including Marturano, left the bar. Marturano thought defendant 'had enough to drink' and followed him to his car because he was worried about his driving. The witness answered 'yes' when asked whether he thought defendant was in a state of intoxication at the time they were at Marty's Bar. The verdict for defendant was returned on November 20, 1961. According to an affidavit filed in support of the motion for a new trial, after Marturano had testified and again on December 1, 1961, in the presence of the sheriff of Sherburne County, Marturano said Hall was not actually intoxicated when he left Marty's Bar.

On January 16, 1962, Marturano's deposition was taken in an action by plaintiff against him based on the theory that plaintiff had sustained damage by reason of an illegal sale by Marturano to Hall at a time when Hall was obviously intoxicated. The following illustrative questions were asked and answers given:

'Q. What, if anything, did you observe about Mr. Hall during the period of time he was in the tavern after you came in?

'A. Well, first at first he sat at the bar and we gabbed a little bit and then he walked over and played the bowling machine and came back and gabbed some more, and then after talking for awhile I started getting to think that he was getting to the point where I wouldn't want to see him drive his car if he drank any more.

'Q. Did you form an opinion at that time that he was intoxicated?

'A. Not intoxicated, no.

'Q. Well, what was it?

'A. Well, I don't know. It's hard to explain it. Being a bartender, why, you can look at a guy, especially if he comes in often--well, in the course of an hour you can tell by the way he talks, you know, if you don't want to give him any more, if you figure it's safe for him to drive or if it isn't.

'Q. Well, at any time while he was in your tavern did you form an opinion as to whether he was under the influence or not under the influence?

'A. No.

'Q. You never formed such an opinion?

'A. No.

'A. Let me tell you in my mind what intoxication is.

'Q. Go ahead.

'A. A man staggering drunk, staggering all over the place, that's what intoxication is to me.

'Q. And will you tell us fully--or explain what you mean by your answer, this answer that you gave, that you thought that Mr. Hall had had enough to drink?

'A. Well, just from observations up to a certain point; anything over that, why, he would very likely to become intoxicated, you know. But up to that point I would say he was still in good enough shape to drive and that anything over that would be just too much for him to get into a car and drive.

'Q. And what, if anything, did you tell the sheriff (following the trial) about what you had testified to at the trial?

'A. Well, I told him that he had had something to drink, but I didn't testify that he was intoxicated.

'Q. Well, is it a fact that you advised the sheriff that at the trial you had not intended and did not...