Jore v. Saturday Night Club, Inc.

• Decision Date: 02 April 1975
• Docket Number: No. 9060,9060
• Citation: 227 N.W.2d 889
• Parties: Orlin JORE and Carol Jore, Plaintiffs-Appellants, v. SATURDAY NIGHT CLUB, INC., a corporation, doing business as Club 81, Defendant-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 889

227 N.W.2d 889

Orlin JORE and Carol Jore, Plaintiffs-Appellants, v. SATURDAY NIGHT CLUB, INC., a corporation, doing business as Club 81, Defendant-Appellee.

Civ. No. 9060.

Supreme Court of North Dakota.

April 2, 1975.

Syllabus by the Court

1. Instructions that are submitted to the parties for exception and are not objected to, after an attorney for a party has had them for a reasonably sufficient time to study them, become the law of the case and any objections to them are waived. Rule 51(c), N.D.R.Civ.P.

2. A trial court may properly refuse tendered instructions which are covered by instructions given on its own motion.

3. The wording of our Civil Damage Act does not indicate that the Legislature intended to equate 'intoxication' with 'under the influence of intoxicating liquor'. The fact that the term 'under the influence of intoxicating liquor' has a specialized, well-defined meaning indicates that, through its omission from the North Dakota Civil Damage Act, the Legislature did not intend to embody its meaning within that statute.

4. Where no offer of proof of excluded testimony is made at trial, the record, on appeal, is inadequate to raise the question of whether the trial court erred in excluding such testimony.

5. On a motion for judgment notwithstanding the verdict the evidence must be viewed in the light most favorable to the party in whose favor the verdict was rendered and such motion should not be granted unless the evidence shows that the moving party is entitled to judgment on the merits as a matter of law.

6. A motion for a new trial is addressed to the sound discretion of the trial court and a denial of such a motion will be overturned on appeal when it is clear that there was a manifest abuse of discretion.

7. Where the trial court instructed the jury that they are not to consider the question of damages until they have determined that the defendant is liable for damages, and where the jury found no liability on the part of the defendant, the trial court's refusal to give plaintiffs requested instruction on damages could not have been prejudicial to the plaintiffs, as the jury's determination of the liability issue precluded consideration of the question of damages.

William W. Binek, Nelson & Binek, Grand Forks, Joel Gilbertson, Senior Law Student, for plaintiffs-appellants.

C. Nicholas Vogel, Vogel, Vogel, Brantner & Kelly, Fargo, for defendant-appellee.

PAULSON, Judge.

A dramshop action was commenced by Orlin Jore and Carol Jore, as surviving parents of Roberta S. Jore, their 17-year-old daughter, against the Saturday Night Club, Inc., a corporation, doing business as Club 81, in the City of Grand Forks. The trial of the action was held in Grand Forks County District Court and a jury returned a verdict for Club 81. The Jores moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The motion was denied, and it is from the order denying such motion that the Jores appeal.

Roberta S. Jore was fatally injured at approximately 12:30 a.m. on April 30, 1972, on Gateway Drive in the City of Grand Forks, when a motorcycle driven by Steven Edward Coss, and on which she was a passenger, collided with an automobile driven by Howard E. Nygard.

On the night of April 29, 1972, Miss Jore and two other girls attended a party at the Holiday Inn in Grand Forks. A number of young people were in attendance at the party, including Steven Edward Coss, who was 17 years of age. During the course of the party, Coss and another minor, named Richard Bohlman, left the Holiday Inn and proceeded to Club 81. They were admitted to the Club 81 bar, where, after drinking some beer on the premises, Coss purchased a 12-pack of beer; and the two youths then returned to the party at the Holiday Inn.

After Coss returned with his friend Bohlman to the Holiday Inn, Coss gave a motorcycle ride to his girl friend (whom he later married), and, subsequently, he gave a motorcycle ride to Miss Jore. Coss and Miss Jore proceeded south from the Holiday Inn to University Avenue, then in an easterly direction on University Avenue, then north on Columbia Road, and then west on Gateway Drive to complete the circuit to the Holiday Inn. The accident occurred as Coss' motorcycle was proceeding west on Gateway Drive.

Miss Jore died at the scene of the accident from injuries she received. Steven Coss was hospitalized because of severe injuries he received. A sample of Coss' blood was taken at the hospital and transmitted to the State Toxicology Laboratory for analysis. The results of the laboratory's tests indicated a blood alcohol content of approximately 0.10 percent by volume.

Section 5--01--06, N.D.C.C., commonly known as the 'Dram Shop Act' or the 'Civil Damage Act', provides:

'Recovery of damages resulting from intoxication.--Every wife, child, parent, guardian, employer, or other person who shall be injured in person, property or means of support by any intoxicated person, or in consequence of intoxication, shall have a right of action against any person who shall have caused such intoxication by disposing, selling, bartering, or giving away alcoholic beverages contrary to statute for all damages sustained.'

The Jores contend that they have proved a case under this statute, and predicate as erroneous:

1. The trial court's refusal to give Plaintiffs' Requested Jury Instruction No. 1, which defined the phrase 'under the influence of intoxicating liquor';

2. The trial court's refusal to allow a chemist employed by the State Toxicology Laboratory to testify as to the effect of a 0.10 percent blood alcohol content upon a hypothetical person;

3. The trial court's denial of the motion for a judgment notwithstanding the verdict or in the alternative for a new trial; and

4. The trial court's refusal to give Plaintiffs' Requested Jury Instruction No. 16, which pertains to damages recoverable under § 5--01--06, N.D.C.C.

We shall consider these issues in the order presented.

The Jores' first contention is that the trial court erred in refusing to give Plaintiffs' Requested Jury Instruction No. 1, which reads:

'PLAINTIFFS' REQUESTED INSTRUCTION #1

'The phrase 'under the influence of intoxicating liquor' is a flexible term. The mere fact that the driver of a motor vehicle may have consumed intoxicating liquor does not necessarily render him 'under the influence of intoxicating liquor'. The circumstances and effect must be considered. On the other hand, the driver of a motor vehicle need not be intoxicated or in a state of drunkenness to be 'under the influence of intoxicating liquor'. This expression covers not only all the well-known and easily recognized conditions and degrees of intoxication, but also any abnormal mental or physical condition which is the result of indulging to any degree in intoxicating liquors, and which tends to deprive a driver of that clearness of intellect or control of himself which he would otherwise possess. Accordingly, if intoxicating liquor has affected the nervous system, brain, or muscles of a driver of a motor vehicle so as to impair, to an appreciable degree, his normal ability to operate a motor vehicle, he is 'under the influence of intoxicating liquor'. Whether Steven Coss was 'under the influence of intoxicating liquor' is a question of fact for you to determine.'

It is the Jores' position that the phrase 'under the influence of intoxicating liquor' is synonymous with 'intoxication', as that word is used in the North Dakota Dram Shop Act and that, therefore, the above Requested Jury Instruction No. 1 should have been given to the jury.

We note at the outset that the trial judge in his instructions to the jury defined 'intoxicated' and charged the jury that there is a distinction between the term 'under the influence of intoxicating beverages' and the term 'intoxicated'. Such instructions, as given to the jury, are as follows:

'A person is intoxicated within the meaning of these instructions when his manner is unusual or abnormal and his intoxicated condition is reflected in his walk or conversation, when his ordinary judgment and common senses are disturbed, when his willpower is temporarily suspended, and these or similar symptoms result from the use of alcoholic beverages and become reasonably discernible to a person of ordinary experience. It is not necessary that the person should be so-called 'dead drunk' or helplessly intoxicated. It is enough that his senses are obviously destroyed or substantially impaired by the use of intoxicating beverages.

'You are further instructed that there is a distinction in this State between the term 'intoxicated' and the term 'under the influence of intoxicating beverages.' The term 'under the influence' covers any abnormal or physical condition which is the result of indulging to any extent in the use of intoxicating liquor which tends to deprive a person of the clearness of intellect and control of himself that he would otherwise possess. 'Intoxication' on the other hand, as heretofore defined, requires that the senses be obviously destroyed and the effect of consuming alcoholic beverages be reasonably discernible to a person of ordinary experience. A person may be 'under the influence of intoxicating beverages' even though he is not intoxicated. Thus, in this case before you can find that plaintiffs are entitled to recover from defendant, you first must find that Steven Coss was intoxicated and not simply under the influence of intoxicating beverages when the accident occurred.'

No exception was made to the giving of these instructions, although counsel were given the trial court's proposed instructions, had a reasonably sufficient time to study them, and were given opportunity to object to the instructions. Consideration of this issue is properly precluded, as this court held in Waletzko v. Herdegen, 226 N.W.2d 648 (N.D.1975), in paragraph 5 of the syllabus:

'Instructions that are submitted to the...