Powell v. Berry

• Decision Date: 21 August 1916
• Docket Number: 618.
• Citation: 89 S.E. 753,145 Ga. 696
• Parties: POWELL v. BERRY.
• Court: Georgia Supreme Court

89 S.E. 753

145 Ga. 696

POWELL v. BERRY.

No. 618.

Supreme Court of Georgia

August 21, 1916

Syllabus by the Court.

If one voluntarily drinks liquor until he is intoxicated, and so negligently operates an automobile as to cause injury to another, his intoxication will furnish no excuse for his negligence or its proximate results.

Voluntary intoxication is not per se negligence. But in an action to recover on account of an alleged negligent tort, in which it was alleged, on the one hand, that the defendant was intoxicated and negligent, and, on the other hand, that the plaintiff himself had been drinking and was negligent, so as to affect his right to recover, the condition of the parties respectively, as to intoxication, is a fact which could be proved for the consideration of the jury, in connection with the other evidence as to negligence, if any, in determining the diligence or negligence of the parties respectively.

(a) If in some cases the undisputed evidence may be such that the case may be controlled by the court as matter of law, this is not one of them.

(b) If a person was injured by reason of the negligent operation of an automobile by another, and was himself negligent, in determining the effect of such negligence on his right to recover for the injury, if he had voluntarily drunk liquor until he was intoxicated, this would furnish no excuse for his negligence, or relief to him from the consequences thereof.

(c) Negligence, as herein employed, refers to the failure to use that degree of care which it was the duty of the parties respectively, to use under the circumstances, without discussing whether in the particular case it would be, as to the one or the other, extraordinary, ordinary, or slight diligence.

Some of the requests to charge did not contain accurate statements of the law. Some were covered by the general charge.

Where suit was brought to recover for the alleged negligent homicide of one who was conducting a dairy, it was error to charge as follows: "You look to the testimony, and determine what the gross receipts from the dairy were, and then you take all the expenses that contributed to this fund the rent of his land, and any expenses that he incurred in and about the running of his dairy, and the difference between the total expenses and the total receipts would be his net earnings, and that would be his average yearly loss and you multiply his average yearly loss by the expectation of years, and that would give you the gross amount of the plaintiff's recovery."

Under previous rulings of this court, in a suit for a negligent tort, where the question of diminution of damages by reason of negligence on the part of the person injured is not raised by the pleadings of either party, it does not constitute reversible error for the court, in the absence of a request, to omit to charge on that subject, where he has charged fully as to the effect of the negligence of the injured person upon the right to recover at all; although it is the better practice to charge on the subject of comparative negligence and diminution of damages, where the evidence authorizes it.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by Mrs. F. M. Berry against George Powell. There was a judgment for plaintiff, and defendant brings error. Reversed.

In a death action, where it was claimed that deceased was also negligent, but the question of diminution of damages was not raised, it is not error for the court to fail to charge thereon, where the right of any recovery, because of deceased's negligence, was presented.

Mrs. F. M. Berry brought suit against George Powell, to recover damages for the homicide of her son. Her petition alleged that her son was riding with the defendant in his automobile about 8 o'clock at night; that the car was driven by the defendant at a rapid and reckless rate of speed, and that, when a curve in the road was reached, the defendant did not slacken the speed, by reason of which the car ran from one side of the road to the other, and finally off the highway upon an embankment, where it suddenly stopped, throwing the plaintiff's son from the car, which fell upon him, and his head struck against a rock or some other hard substance, from which death resulted; that the plaintiff's son had nothing to do with the operation of the car, and no control over or direction of the defendant, but was riding as a guest of the latter; that the defendant was under the influence of liquor or other strong drink to such an extent as to make him careless and reckless, and regardless of the safety of the plaintiff's son; and that her son lost his life through the negligence and carelessness of the defendant. There were also allegations as to the age and earning capacity of the deceased, his contribution to the plaintiff's support, and her dependence upon him.

The defendant denied liability, or that he was guilty of negligence as alleged. He averred that he was driving the car cautiously and carefully and at a moderate rate of speed; that, as it was going around a curve, a large touring car, running at a rapid rate of speed, approached on the same side of the road as that on which was the defendant's automobile; that it was equipped with and was using brilliant headlights, the light of which flashed into the defendant's eyes and momentarily blinded him; that, in order to avoid a collision with the approaching car, he attempted to cross the road, but his car was struck by the other and turned completely around; and that he was in no way to blame for the injury to the decedent. By amendment the defendant alleged that at the time of the accident both the plaintiff and the defendant were riding in the car of the latter on a public highway; that they were engaged in a joint enterprise, and were returning from a place whither they had gone to obtain whisky for their joint consumption; that the whisky was purchased by the decedent; that both of them were in an intoxicated condition on a public highway of the state; that the defendant was intoxicated, and the deceased knew it when he entered the car, and he remained there with full knowledge of the defendant's condition, and made no effort to control the defendant in the operation of the car, and did not remonstrate with him about his driving; and that the deceased was guilty of such negligence in entering the car and remaining there as to prevent a recovery.

The jury found in favor of the plaintiff, $4,117. The defendant moved for a new trial, which was refused, and he excepted. Other necessary facts appear in the opinion.

Simmons & Simmons and Rosser, Slaton, Phillips & Hopkins, all of Atlanta, for plaintiff in error.

J. Caleb Clarke and Geo. Westmoreland, both of Atlanta, for defendant in error.

LUMPKIN, J. (after stating the facts as above).

1. Voluntary drunkenness furnishes no excuse for negligence; nor does it relieve a drunken man from exercising the degree of care required of a sober man in the same circumstances. If a person is required to use ordinary care, this means that care which every prudent man would exercise under similar circumstances. In taking the conduct of every prudent man as a standard, reference is made to the normal man; that is, the sober man. Ordinary care is not to be measured by what every prudent drunken man would do under like circumstances, but what every prudent sober man would do under like circumstances. If ordinary care under certain circumstances would require that a certain thing should be done, the requirement is binding on a man whether sober or drunk; and getting drunk will not relieve the person from that duty. To hold otherwise would be to put a premium upon drunkenness. Woolen & Thornton on Intoxicating Liquors, § 1184 et seq. A similar rule has been applied in holding that voluntary drunkenness furnishes no excuse for crime. If ordinary care is not the measure of diligence required in the particular case, what is said above is equally applicable to the degree of diligence which is required.

2. As drunkenness does not furnish an excuse for negligence, neither does it constitute negligence as matter of law. It is possible, whether probable or not, for one man to act with the care of a prudent man while intoxicated, and for another to act with a lack of ordinary care while sober. If the conduct of the drunken man measures up to the standard fixed by law, the drunkenness alone will not authorize a recovery for an injury caused by him. Still it is one of the facts entering into the transaction, and is provable as such. It is not negligence per se for a man to have a defective vision, or to have an impotent hand; but if a person so afflicted should undertake to drive a powerful automobile on a crowded thoroughfare, and injury should occur from a collision with another passer, the condition of the driver of the machine would be a provable fact, under proper allegations, for consideration by the jury in determining whether in his entire conduct he was negligent. It is not negligence per se to have a cork leg. But it may be negligent for a man with a cork leg to chase and seek to board a moving train; or the condition of a passenger, known to a carrier, may have an effect upon what due care requires of the carrier.

As liquor may affect, not only the brain, but the nerves, the muscles, and the eyesight, if a person voluntarily becomes intoxicated, and in that condition undertakes to drive an automobile, and injury results to another from the negligent operation of it, his condition would be a fact for the consideration of the jury, in determining whether he acted with diligence or negligence; or, if injury should result to him, and he should bring suit, whether he had voluntarily created a...