Miller v. Treat, 35253

• Decision Date: 29 December 1960
• Docket Number: No. 35253,35253
• Citation: 57 Wn.2d 524,358 P.2d 143
• Parties: Eldora Ann MILLER, by her Guardian ad litem, Matt J. Miller, Appellant, v. A. E. TREAT and Marguerite Treat, husband and wife, Ruth Whitson and Wayne Kelly, Respondents.
• Court: Washington Supreme Court

Page 524

57 Wn.2d 524

358 P.2d 143

Eldora Ann MILLER, by her Guardian ad litem, Matt J. Miller, Appellant, v. A. E. TREAT and Marguerite Treat, husband and wife, Ruth Whitson and Wayne Kelly, Respondents.

No. 35253.

Supreme Court of Washington, En Banc.

Dec. 29, 1960.

Felthous & Brachtenbach, Ray Browder, Selah, for appellant.

Gavin, Robinson & Kendrick, Robert R. Redman, Yakima, for respondents Treat.

Palmer, Willis & McArdle, Yakima, for respondent Whitson.

Cheney & Hutcheson, Yakima, for respondent Kelly.

HUNTER, Judge.

This is a consolidated action to recover damages for personal injuries sustained by a guest passenger in an automobile resulting from a two-car collision. Plaintiff in both actions is Eldora Ann Miller, a minor of seventeen, by her guardian ad litem. In one action the defendants are the host driver and the owner of the vehicle in which she was riding. In the other the defendants are the parents of the driver of the vehicle which collided with the host vehicle. At the conclusion of plaintiff's case, defendants moved for a nonsuit which was granted. In accordance therewith, the trial court entered judgment against the plaintiff, from which this appeal is taken.

In reviewing this ruling we are bound by the well-established rule stated in Mutti v. Boeing Aircraft Co., 1946, 25 Wash.2d 871, 172 P.2d 249, and reannounced in Sawyer v. Department of Labor & Industries, 1960, 48 Wash.2d 761, 296 P.2d 706, 708:

'A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of the plaintiff's evidence and all inferences which reasonably can be drawn therefrom, and repuires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to plaintiff. In the determination of such challenge or motion, even though the plaintiff's evidence is in some respects unfavorable to him, he is not bound by the unfavorable portion of such evidence, but is entitled to have his case submitted to the jury on the basis of the evidence which is most favorable to his contention * * *.' (Italics ours.)

Some of the testimony is conflicting but the evidence most favorable to the appellant is as follows:

The two-car collision occurred, at approximately 1 o'clock a. m. September 7, 1957, west of Yakima at the intersection of Ahtanum Road, a paved highway, and McDonald Lane. The minor, Eldora Ann Miller, was a guest riding in the front seat of the vehicle owned by defendant Whitson and driven by defendant Wayne Kelly. This vehicle was behind a truck, which was immediately preceded by the car of defendants E. A. and Marguerite Treat, driven by their minor son Dennis. All three vehicles were proceeding easterly along a straight section of Ahtanum Road toward the intersection. As Kelly was in the process of passing the truck, the Treat vehicle, without warning, turned left toward McDonald Lane across the passing lane of the Whitson car. A violent collision resulted, causing severe personal injuries to the minor guest.

The jury could have found Kelly, the driver, did not sound his horn before he passed the truck, and that he was traveling at a speed of eighty miles an hour at least 'a few seconds or minutes' immediately prior to the collision. Earlier in the evening, the occupants of the two cars, mostly teenagers, had gathered at a rural area to the west for a party where they had a bonfire, ate hot dogs and drank beer. The Miller girl had been driven to the party by a friend, arriving at about 8:30 or 9:30 p. m. Between that time and the time she left in the Whitson car, about 12:30 or 12:45 a. m., she drank three bottles of beer. Kelly, the host driver, drank three or four bottles of beer and ate three hot dogs during the four hours he was at the party. Kelly testified he was not intoxicated. The Miller girl knew he had been drinking but was of the opinion he was not intoxicated when she got in the car to leave the party. She was not aware anything was wrong with Kelly's driving until about eight-tenths of a mile before the scene of the collision when she requested that he slow down. The thought he heard her request, but Kelly testified he did not.

The only testimony about Kelly's speed of eighty miles an hour was that of Jerry Griffith, a passenger in the rear seat of the Whitson car, who stated he had leaned forward to observe the speedometer shortly before the impact.

For convenience, Eldora Ann Miller will be referred to as the appellant. Appellant contends the trial court erred in holding her guilty of contributory negligence as a matter of law and in applying the doctrine of volenti non fit injuria, for the sole reason that she had seen the host driver drinking intoxicating liquor before entering the automobile.

Respondents argue the court's ruling is correct and that Taylor v. Taug, 1943, 17 Wash.2d 533, 136 P.2d 176, 179, is controlling in the disposition of this issue. In that case the host was sued for injuries sustained by a minor guest. The guest knew, upon entering the car, that her host had been drinking. We said:

'* * * The only purpose of the consideration of the question of protest was whether or not the evidence showed that the guest was guilty of contributory negligence in riding with a reckless driver.

* * *

* * *

'* * * That the drinking of intoxicating liquor effectually destroys the faculties essential to safe driving is of such common knowledge that no one with sense will submit to the peril of riding with a driver who has recently consumed liquor. Anyone who submits to that peril assumes the risk attendant upon the journey and is guilty of contributory negligence which precludes recovery. * * *

* * *

* * *

'* * * This accident was simply the aftermath of a drinking party and, while appellant did not drink intoxicating liquor, she certainly knew that liquor was being consumed by the driver and others in his company.

'We hold that appellant assumed the risk attendant upon the journey, and that she was guilty of contributory negligence. * * *' (Italics ours.)

The appellant contends this was obiter dictum and was not necessary to the determination of the case. We agree. We so stated in Traverso v. Pupo, 1957, 51 Wash.2d 149, 316 P.2d 462, 464:

'Appellant contends that, assuming that a business relationship was proved, nevertheless the respondent was guilty of contributory negligence when she voluntarily rode in appellant's automobile, with knowledge that he had recently consumed intoxicating liquor. In support of this contention, appellant cites Taylor v. Taug, 1943, 17 Wash.2d 533, 136 P.2d 176. In the Taylor case, the statutory host-guest relationship was found to have existed at the time the guest entered the automobile and to have continued to the end of the trip. We held, in that case, that the guest was precluded from recovery, since there was not showing of intentional injury. Although there was reference to the use of intoxicating liquor by the driver of the automobile, such conduct on the part of the driver was not essential to the court's determination of liability, under the statute there in question. The cited case does not support appellant's contention.'

Moreover, had the court found an intentional injury by the host driver in the Taylor case, contributory negligence could not have been asserted as a defense. Thus, the statement in Taylor v, Taug, in regard to the guest's contributory negligence was clearly unnecessary to the decision, and cannot be cited as a rule of law in this state.

In the recent case of White v. Peters, 1958, 52 Wash.2d 824, 329 P.2d 471, 473, we recognized that the consumption of intoxicating liquor by a driver does not necessarily establish his being under the influence of intoxicating liquor. We stated:

'There is no evidence in this case that plaintiff White was affected in any way by the two drinks, and no evidence of conduct or appearance, from which a fair inference could be drawn, that he was under the influence of intoxicating liquor prior to or at the time of the accident.'

In Wolden v. Gardner, 1930, 159 Wash. 665, 294 P. 574, and in Wold v. Gardner, 1932, 167 Wash. 191, 8 P.2d 975, 977, we recognized a guest passenger's knowledge that his host driver had been drinking intoxicating liquor before entering the car did not charge the guest with knowledge that the host was under the influence of intoxicating liquor as a matter of law. In the Wold case, we said:

'Since it was held on the former appeal that the questions of gross negligence and independent negligence of respondent were questions of fact for the jury to determine, the very emphatic assertion of appellants that they do not state the law, but that the law is as decided in the Wayson case, supra [Wayson v. Rainier Taxi Co., 1925, 136 Wash. 274, 239 P. 559, 45 A.L.R. 290], that, where a passenger enters an automobile knowing the driver thereof to be intoxicated, he is guilty of independent negligence as a matter of law and the jury has no option in the matter, is defeated by the fact that respondent testified that he did not know when they began the return journey from British Columbia on the night in question, that the driver was intoxicated, and it was not until they had left Ferndale and were driving on the Chuckanut drive that he began to notice that the driver was driving too rapidly. All the other facts given by him were as stated in the former decision herein [Wolden v. Gardner, supra].'

In the Wold case, as in the instant case, the appellant guest knew when entering the car that the host driver had been drinking. The facts referred to in the Wold case, as those stated in the former decision, are contained in the following quotation from Wolden v. Gardner:

'Appellant testified that the parties left for Blaine in the Gardner car about 8:30 o'clock, p. m.; it being conceded that appellant was the guest of respondent George Gardner. The party arrived at Blaine shortly after ten o'clock, and...