Osborn v. Chapman

• Decision Date: 11 July 1963
• Docket Number: No. 36015,36015
• Citation: 62 Wn.2d 495,384 P.2d 117
• Court: Washington Supreme Court
• Parties: Richard OSBORN, Respondent, v. Reita M. CHAPMAN, Individually, and as Executrix of the Estate of Lloyd W. Chapman, Deceased, and William Chapman, Appellants.

Page 495

62 Wn.2d 495

384 P.2d 117

Richard OSBORN, Respondent, v. Reita M. CHAPMAN, Individually, and as Executrix of the Estate of Lloyd W. Chapman, Deceased, and William Chapman, Appellants.

No. 36015.

Supreme Court of Washington, En Banc.

July 11, 1963.

Lycette, Diamond & Sylvester and Albert O. Prince, Seattle, for appellants.

Wright & Wright, Seattle, for respondent.

OTT, Chief Justice.

Lloyd W. Chapman and Reita M. Chapman, his wife, and their son, William Chapman, appealed from a judgment entered in an action for the alleged wrongful death of the respondent's son, Joseph Osborn. Subsequently, Lloyd W. Champman died, and Reita M. Chapman, as executrix of his estate, was substituted as a party appellant for her deceased husband.

May 21, 1959, Joseph Osborn and two other minor boys were guest passengers in the appellants' automobile, driven by their son William, aged 19. Soon after the start of the trip, two bottles of wine were purchased, which were consumed by the four youths while they were stopped on a side road. Thereafter, William Chapman resumed driving. At a 'T' intersection, the automobile went out of control. William Chapman then offered to relinquish the driving of the automobile to any one of the others. The offer was not accepted.

The trip continued down a winding, graveled, county road, at speeds variously estimated up to 60 miles an hour. The automobile again went out of control, left skid marks for a distance of 310 feet, ran off the road, and struck a tree. Joseph Osborn suffered fatal injuries.

Appellants' assignments of error relate to the alleged insufficiency of the evidence to establish liability, and to instructions given or refused.

The rule is well established that, when the sufficiency of the evidence to sustain the verdict is challenged, the evidence and all inferences therefrom are considered in the light most favorable to the prevailing party. Day v Frazer, 59 Wash.2d 659, 369 P.2d 859 (1962); Jones v. Hogan, 56 Wash.2d 23, 351 P.2d 153 (1960); Gildesgard v. Pacific Warehouse Co., 55 Wash.2d 870, 350 P.2d 1016 (1960); Traverso v. Pupo, 51 Wash.2d 149, 316 P.2d 462 (1957). William Chapman's admission of speed and drinking (later denied), together with the physical evidence and surrounding circumstances, was sufficient to raise a factual issue as to liability for the jury's determination. Applying the rule to the facts in the instant case, the court did nor err in denying the motion challenging the sufficiency of the evidence.

Appellants next contend that the evidence established that the deceased was guilty of contributory negligence, as a matter of law, by riding with William Chapman, having knowledge of his drinking and the manner in which he had operated the automobile just prior to the fatal accident, and by not accepting William Chapman's offer to relinquish the driving to decedent.

Whether these facts had been proved, or whether a reasonably prudent passenger would have continued the journey with his host under these circumstances, presented factual issues to be resolved by the jury. Lambert v. Smith, 54 Wash.2d 348, 340 P.2d 774 (1959); Traverso v. Pupo, supra.

We turn now to the alleged errors relative to instructions given or refused.

Respondent's action was based upon the 1957 amendment to the host-guest statute (Laws of 1957, chapter 132, p. 484, RCW 46.08.080), which provided:

'No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, 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, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while it is being demonstrated to a prospective purchaser.'

The statute grants a host immunity from liability for injury to his guest which proximately results from simple negligence. Abel v. First Bible and Missionary Conference, 57 Wash.2d 853, 360 P.2d 356 (1961). Liability is established (in the absence of contributory negligence) only after it has been proved, by a preponderance of the evidence, that the injury to the guest was intentionally inflicted by the host or was the proximate result of his gross negligence or intoxication.

The appellants requested the court to instruct the jury upon this statutory immunity granted to a host. The court denied the request. In a host-guest case, such an instruction should be given, and it was prejudicial error to fail to instruct the jury in this regard. See DeKoning v. Williams, 47 Wash.2d 139, 286 P.2d 694 (1955).

In the event of a retrial, alleged errors relating to certain other instructions, given or rejected, should be considered.

In instruction No. 3, the court properly defined gross negligence; however, in the same instruction it defined wanton misconduct. To overcome the immunity of a host, the statute enumerates intentional injury as one basis for establishing liability, and that term, rather than wanton misconduct, should have been defined. Further, in the same instruction, simple negligence was defined to aid the jury in understanding the term gross negligence. The jury should have been instructed that simple negligence was defined solely for this purpose, and that it will not sustain a verdict in a host-guest case.

The court, in its instruction No. 4, set forth RCW 46.48.010 and instructed that 'The violation * * * of the foregoing statute would constitute negligence as a matter of law.' We have held that simple negligence is established per se, if the regulatory standards defined by statute are violated. Gross negligence per se is not proved by evidence of violation of statute. It is evidence of 'want of slight care' which establishes gross negligence. Eichner v. Dorsten, 59 Wash.2d 728, 370 P.2d 592 (1962); Miller v. Treat, 57 Wash.2d 524, 358 P.2d 143 (1960).

Finally, the specific acts upon which appellants relied to establish contributory negligence on the part of the decedent were (1) that as a reasonably prudent person he should have accepted William Chapman's offer to relinquish the driving of the automobile, and (2) that he should not have continued the journey, with knowledge of the alleged drinking and the manner in which appellant driver had operated the vehicle just prior to the fatal accident. Appellants' requested instruction in this regard, or a similar one, should have been given to present this defense to the jury.

Upon retrial, the instruction should be given in accordance with the views herein expressed.

For the reasons stated, the judgment is reversed, and the cause remanded with instructions to grant a new trial.

WEAVER, ROSELLINI, HUNTER and HALE, JJ., concur.

HAMILTON, Judge (dissenting).

I agree with the majority in their determination that the evidence is sufficient to justify submission of the cause to the jury upon the issues presented by the pleadings and defined by the instructions.

The majority, however, grant a new trial upon the basis that the trial court failed to submit an instruction reciting the host-guest statute (RCW 46.08.080). With this determination I disagree.

Appellants excepted, at the time of trial, to the trial court's failure to submit their proposed instruction embracing the host-guest statute in the following manner:

'The defendant excepts to failure to give defendant's Instruction Number 6, Your Honor, which is a statement of the law of the State of Washington: [Statute read.] This is 46.08.060, I believe, Your Honor; I will stand corrected on the last two.'

A general exception such as this does not conform with the requirements of Rule of Pleading, Practice and Procedure 51.16W, RCW Vol. O, and will not support an assignment of error or appellate review. Klise v. Seattle, 52 Wash.2d 412, 325 P.2d 888; Cauble v. Dahl, 48 Wash.2d 440, 294 P.2d 697; Rank v. Alaska Wash.2d 26, 290 P.2d 697; Rank v. Alaska Steamship Co., 45 Wash.2d 337, 274 P.2d 583; Shields v. Paarmann, 41 Wash.2d 423, 249 P.2d 377; Ballard v. Yellow Cab Co., 20 Wash.2d 67, 145 P.2d 1019; Glick v. Ropes, 18 Wash.2d 260, 138 P.2d 858; Hansen v. Columbia Breweries, Inc., 12 Wash.2d 554, 122 P.2d 489; Boyd v. Cole, 189 Wash. 81, 63 P.2d 931; Keseleff v. Sunset Highway Motor Freight Co., 187 Wash. 642, 60 P.2d 720; Drainage Dist. No. 2 of Snohomish County v. City of Everett, 171 Wash. 471, 18 P.2d 53, 88 A.L.R. 123.

The sole written argument advanced by appellants in their brief upon the assignment of error embracing the foregoing exception reads:

'The refusal of the trial court to give these instructions to the jury prevented them from adequately considering all of the law applicable to the facts of this case.'

Rule on Appeal 42(a)(7), RCW Vol. O, requires that assignments of error be discussed in the brief. A failure so to do will be deemed an abandonment or waiver of the assignment of error. Seattle v. Love, 161 Wash.Dec. 113, 377 P.2d 255; El Cerrito, Inc. v. Ryndak, 160 Wash.Dec. 851, 376 P.2d 528; State v. Davis, 160 Wash.Dec. 235, 37o P.2d 128; DeHeer v. Seattle Post Intelligencer, 160 Wash.Dec. 124, 372 P.2d 193; Verstraelen v. Kellog, 160 Wash.Dec. 117, 372 P.2d 543; State v. Bell, 59 Wash.2d 338, 368 P.2d 177; Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556; Fulton...