Morse v. Frank, 112

• Citation: 1 Wn.App. 871,466 P.2d 166
• Decision Date: 06 February 1970
• Docket Number: No. 112,112
• Parties: Madeline MORSE, Appellant, v. Arthur FRANK and Hazel Frank, husband and wife, Respondents. (40875) II.
• Court: Court of Appeals of Washington

Page 871

1 Wn.App. 871

466 P.2d 166

Madeline MORSE, Appellant, v. Arthur FRANK and Hazel Frank, husband and wife, Respondents.

No. 112 (40875) II.

Court of Appeals of Washington, Division 2.

Feb. 6, 1970.

Erickson & Worthington, Harvey Erickson, Spokane, for appellant.

Irwin, Friel & Myklebust, Kenneth B. Myklebust, Pullman, for respondents.

PEARSON, Judge.

Plaintiff, Madeline Morse, received personal injuries on July 16, 1967, while riding as a guest passenger in the automobile of defendants, Arthur and Hazel Frank. Her action was tried to the court, sitting without a jury.

The trial court found that defendant driver, Arthur Frank, was intoxicated at the time of the accident and that his intoxicated condition was a proximate cause of plaintiff's injuries. However, the court found that plaintiff had voluntarily entered defendant's automobile when she knew, or in the exercise of ordinary care should have known, that he was intoxicated and that had she been exercising ordinary care she would not have done so. Accordingly, the trial court dismissed the action.

Plaintiff concedes in argument that if there is substantial evidence to support the trial court's finding of contributory negligence on the part of plaintiff in riding with an intoxicated driver, the appeal should be dismissed. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959). We have carefully reviewed the record and have synthesized the facts as follows:

The accident occurred about 12:30 to 1:00 a.m. on Interstate Highway 90, in the vicinity of Post Falls, Idaho. The defendant, Arthur Frank, ran into the rear end of a moving automobile proceeding in the same direction (westerly) as defendant's automobile.

The plaintiff, a single woman, had accompanied Arthur Frank and his wife, Hazel Frank, to a pool hall and later a tavern near Post Falls, Idaho in order to celebrate plaintiff's birthday. They left Spokane on Saturday evening, July 15, 1967, at about 8:00 p.m. They were together almost continuously during the evening, drinking beer and dancing.

There was substantial evidence to support the trial court's finding that Arthur Frank was intoxicated. This testimony came from the plaintiff herself and from the State Patrol officer. The latter testified that Arthur Frank appeared to be under the influence of alcohol immediately after the accident, with an unsteady walk, slurred speech, and the odor of alcohol on his breach. His 'Mobat' breath test registered .28 per cent.

Plaintiff herself, described Arthur Frank as being 'thick tongued' and that she knew he had 'plenty' of beer during the evening. Prior to this night, she had been a frequent drinking companion of the Franks and testified that she had seen Arthur intoxicated before and from their close acquaintanceship could tell whether or not he was affected.

Both parties concede that Idaho has a host-guest statute similar to the Washington statute, RCW 46.08.080, which provides:

No person transported by the owner or operator of a motor vehicle as an invited guest or license, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident unless the accident was intentional on the part of the owner or operator or the result of said owner's or operator's gross negligence or intoxication * * *.

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