Franco v. Vakares

• Citation: 35 Ariz. 309,277 P. 812
• Decision Date: 03 June 1929
• Docket Number: Civil 2804
• Parties: AMADO FRANCO, Appellant, v. MINOS VAKARES, as Administrator of the Estate of APALINAR SALGADO, Deceased, Appellee
• Court: Arizona Supreme Court

277 P. 812

35 Ariz. 309

AMADO FRANCO, Appellant, v. MINOS VAKARES, as Administrator of the Estate of APALINAR SALGADO, Deceased, Appellee

Civil No. 2804

Supreme Court of Arizona

June 3, 1929

APPEAL from a judgment of the Superior Court of the County of Pima. Gerald Jones, Judge. Remanded, with directions that complaint be dismissed.

Mr. C H. Young, for Appellant.

Messrs Cella & Cella, for Appellee.

OPINION

ROSS, J.

This is an appeal from a verdict and judgment awarding damages to Minos Vakares as administrator of Apalinar Salgado for the latter's death while riding as a guest of the defendant Amado Franco, in his Ford coupe.

Defendant contends that under the undisputed facts plaintiff is not entitled to any judgment against him, and he saved this point for review by moving for a directed verdict at the close of the case, upon the ground of insufficient evidence to support the complaint, and also by motion for a new trial. Likewise error is predicated on the court's instructions.

The evidence is free from material conflict, and presents this fact situation: On Sunday night, August 28th, 1927, at about 8:30 o'clock, the defendant and one Philip M. Chaoss were out riding in defendant's Ford coupe and, as they were going along Anita Street, in the city of Tucson, Chaoss saw walking on the sidewalk Salgado and Jose M. Escaria whereupon he suggested to defendant that they invite Salgado and Escarcia to ride with them. Defendant stopped his car, and Salgado and Escarcia got into it. Escarcia, Chaoss and defendant, who was driving, sat on the seat, and Salgado sat partly on Chaoss' and partly on Escarcia's lap. They had not proceeded very long or far when Salgado produced from somewhere on his person a pint bottle of corn whisky, from which they all drank. Later defendant took another drink. Salgado sickened at his stomach and vomited as the result of his drinking. In the meantime they were driving around the streets of Tucson, talking and singing, some of the party insisting on doing one thing and some another. This was kept up until about 9:40 of that evening, when the driver (defendant), while racing with another car along a street of the city, drove his coupe head-on into a street-car moving slowly in the opposite direction, said street-car being at the time well lighted, and the motorman doing everything possible to attract attention. The impact killed Salgado, and injured the others, but not fatally.

Chaoss, describing the condition of the party with reference to sobriety, said:

"I guess they were feeling good, you see, and that is why I -- they were singing and they wanted to get a guitar. Maybe they feel like it. I guess they did, but you know they don't sing unless they get a drink or something like that, be out of their mind."

Defendant, Franco, testified that he drank twice from the bottle, and after a little while his memory became blank, and that their condition was such that they did not know what they were doing.

The liquor was described by the witnesses as bad stuff and as tasting strong.

Chaoss, Escarcia and defendant all testified that they did not see or hear the street-car, and did not know what had happened to them until some time after the accident -- at the hospital, in fact.

The motorman, testifying, said in effect: "When I first saw them they were about one block away. I had a good headlight -- one of the best. The car was well lit. To me it looked like there was two cars racing down the street towards me -- one was on the track and one alongside of it. They just kept coming towards me. I stood up and rang the bell; it was a loud bell; tried to warn them. The coupe couldn't have been more than three to ten feet from me when it undertook to turn to the west. I kept ringing until they hit me. They were traveling very fast. I was coming to a stop or had stopped. Within a few feet they tried to get off the track, but . . ."

The policeman who arrived on the scene shortly after the accident found in the car a partially emptied pint bottle of corn whisky.

The answer interposed the defense (1) of intoxication induced by plaintiff's intestate, and (2) the intestate's contributory negligence. The testimony without conflict sustained both of these defenses.

A guest who rides in an automobile knowing that the driver is intoxicated is guilty of contributory negligence. He knows, or ought to know, that a drunken or intoxicated driver is apt to be a careless and reckless driver, and should be held to accept an invitation to ride with such a driver at his own risk. 42 C.J. 1176, § 953. As is said in Schwartz v. Johnson, 152 Tenn. 586, 47 A.L.R. 323, 280 S.W. 32: "When one gets into an automobile which is to be operated by a drunken driver, through the traffic of a populous city, such person takes his life in his hands. All the authorities are to the effect that such contributory negligence prevents a recovery by one taking such a chance, if he is injured as a result of the driver's negligence."

On the issue of contributory negligence, the court, under section 5, article 18, of the Constitution, would have properly submitted the case to the jury if that had been the only issue. That section provides that the defense of contributory negligence is one of fact and to be left to the jury at all times. Whatever the state of the testimony, contributory negligence must always go to the jury when made an issue. It would seem, however, that, where the facts uncontrovertedly convict the plaintiff's intestate of contributing to his own injury and death, as they do in this instance, the court should have exercised its discretion upon a motion for a new trial to vacate and set aside the verdict for that ground.

Granting that the case was properly submitted to the jury upon that issue, and that the court's refusal to order a new trial was proper under the circumstances, what of the other defense, to wit, that the plaintiff's intestate gave to the defendant the intoxicating liquor which produced in him, while operating the car, a condition of intoxication? We think this defense should be absolute.

If it be contributory negligence to ride in an automobile with a driver knowing him to be intoxicated, what shall be said of him who furnishes the...