Provins v. Bevis

• Decision Date: 05 January 1967
• Docket Number: No. 37898,37898
• Citation: 422 P.2d 505,70 Wn.2d 131
• Court: Washington Supreme Court
• Parties: Nancy J. PROVINS, Respondent, v. Charlene BEVIS and Pierce County, a municipal corporation, Appellants.

Page 131

70 Wn.2d 131

422 P.2d 505

Nancy J. PROVINS, Respondent, v. Charlene BEVIS and Pierce County, a municipal corporation, Appellants.

No. 37898.

Supreme Court of Washington, Department 2.

Jan. 5, 1967.

Merrick, Douglas & Burgess, F. Ross Burgess, Seattle, for appellants.

John McCutcheon, Pros. Atty., Donald F. Herron, Deputy Pros. Atty., Tacoma, for appellant Pierce Co.

Davies, Pearson, Anderson & Pearson, Tacoma, for respondent.

HAMILTON, Judge.

Plaintiff, Nancy J. Provins, was injured during the early morning hours of April 6, 1963, when the automobile in which she was riding as a passenger struck a stump at the end of Devil's Head road on the Longbranch Peninsula in Pierce County, Washington. She initiated this action seeking redress from her host driver, Charlene Bevis, and from the proprietor of the road, Pierce County. A jury found liability on the part of both defendants and awarded damages. Miss Bevis and Pierce County appeal.

The background pertinent to this appeal may be summarized in the following manner: On the evening of April 5, 1963, the Misses Provins and Bevis, being close friends, met for a social evening. They proceeded, in Miss Bevis's automobile, first to the New Yorker, a cafe and cocktail lounge in Tacoma, where they each had two bottles of beer, and then to the Bevis home in the Gig Harbor area where they changed clothes. From the Bevis home they journeyed to the Key Center Tavern on the Longbranch Peninsula arriving there between 9 and 9:30 p.m. A community benefit, being given for a family whose home had burned was in progress at the tavern. Food, beer, and dancing were available. The two young ladies remained at the tavern until midnight eating, dancing, and drinking, they said, only three glasses of beer apiece. Upon departing the tavern they drove to a friend's home, where they stayed for about an hour and consumed some more beer. Their friend testified that at this time they appeared to be under the influence of intoxicants. The girls denied such was the case, both proclaiming that neither was affected by their compotation.

After leaving the residence, with Miss Bevis driving and their ultimate destination the Provins home in Tacoma, they entered upon and proceeded south on the Longbranch road. At the time, it was rainy and foggy, and Miss Bevis feared she was lost.

The Longbranch road is a center-striped, two-lane, macademized arterial running generally north and south on the Longbranch Peninsula. South of the community of Longbranch, it merges into and becomes known as Devil's Head road, which in turn dead ends in a graveled turnaround just short of the southern tip of the Peninsula. The road is maintained by Pierce County. It is posted with a 35 mile an hour speed limit. At the time of the accident it was marked as a dead-end road with a single black on yellow, wooden, 18 by 24 inch sign located among some fence posts several feet distant from the right side of the roadway, and about 50 feet south of a view-obstructing intersection approximately 1.2 miles from the terminus of the road. The dead-end sign was not reflectorized, and immediately beyond it and considerably closer to the edge of the roadway was a standard 35 mile an hour speed limit sign.

As the road approaches its terminus, the bordering foliage becomes heavier and in some places overhangs the road, producing a tunnel-like effect, and the center stripe bends slightly to the right, creating the impression that the road turns and continues in that direction. Instead of turning right, however, the paved portion of the road ends abruptly and a graveled lane turns sharply to the left around a centerpiece of trees and foliage thus creating the turnaround.

After traveling south on the Longbranch road for some distance, the girls reached and stopped briefly in the community of Longbranch. The purpose of the stop is in dispute. Miss Bevis testified it was for the purpose of getting her bearings. Other testimony suggests it was for the purpose of effecting a rendezvous with another friend. In any event, at this point Miss Provins, who was recuperating from a recent hospitalization, fell asleep and Miss Bevis continued driving south on Devil's Head road, either believing she was on a road that would lead her to Tacoma or in pursuit of the friend who had driven past them as they were parked in Longbranch. As she proceeded south she passed the intersection with the dead-end sign and noted only the speed-limit sign. As she approached the area of the turnaround, she observed the center line binding to the right, believed she was entering a right turn, slowed down preparatory thereto, and, as the automobile reached the gravel, suddenly realized the road ended. She immediately applied the brakes, skidded sideways in the gravel, and collided with a tree stump just past the graveled area. The left side of the automobile was damaged and Miss Bevis and Miss Provins were injured.

Miss Provins predicated her claim for relief against Miss Bevis upon allegations of gross negligence or intoxication, and against Pierce County upon allegations of failure to provide adequate warning of a deceptive and dangerous highway condition. Both defendants denied liability, and pleaded contributory negligence. Pierce County, in addition, pleaded that the accident was caused by excessive speed and intoxication on the part of Miss Bevis. At the conclusion of plaintiff's evidence, which did not include the testimony of the girls' friend as to their being under the influence of intoxicants, both defendants challenged the sufficiency of the evidence. The respective motions were denied. Miss Bevis elected to stand on her motion and presented no evidence. Pierce County proceeded with its evidence, including the opinion evidence regarding the girls' state of sobriety. At the conclusion of all of the evidence, both defendants renewed their challenges and at this stage the trial court denied the county's motion and granted Miss Bevis's motion with respect to the allegation of gross negligence, but denied it as to the allegation of intoxication. Plaintiff's allegations, as thus delimited, were submitted to the jury.

Miss Bevis, on appeal, in essence renews her challenge to the sufficiency of plaintiff's evidence to justify submission of the issue of intoxication to the jury under the host-guest statute. She insists (a) the trial court was required to grant her motion at the conclusion of plaintiff's case, because the evidence was then insufficient to sustain a jury finding of either gross negligence or intoxication; (b) because she stood on her challenge, neither the trial court, in passing upon her renewed challenge at the conclusion of all of the evidence, nor the jury, as to plaintiff's claim, could consider the evidence bearing upon intoxication as adduced by her co-defendant, Pierce County; (c) the word intoxication, as used in the host-guest statute, denotes a greater degree of inebriation than is implied by the phrase 'under the influence of or affected by intoxicants,' and the evidence, however considered, was insufficient to support such a finding of intoxication.

Addressing ourselves to contentions (a) and (b) above, and bearing in mind that we are here dealing with a situation where two defendants are properly joined in an action, we are satisfied the answers to both contentions inheres in the rule expressed by Lord Denman, Ch. J., in Sowell v. Champion, 6 Ad. & El. 407, 112 Eng.Reprint 156, 2 Nev. & P. 627 (1838). Directing his attention to a cause in which two or more defendants were joined, and one or more moved for a dismissal at the conclusion of the plaintiff's case, Lord Denman stated the pertinent principle and rationale as follows:

'The application to a Judge, in the course of a cause, to direct a verdict for one or more of several defendants in trespass is strictly to his discretion; and that discretion is to be regulated, not merely by the fact that at the close of the plaintiff's case no evidence appears to affect them, but by the probabilities whether any such will arise before the whole evidence in the cause closes. There is so palpable a failure of justice, when the evidence for the defence discloses a case against a defendant already prematurely acquitted, that such acquittal ought never to take place, but where there is the strongest reason to believe that such a consequence cannot follow.' 48 A.L.R.2d 536.

That American courts have, in general, subscribed to the rule and reasoning of Lord Denman in the Sowell case is evident from the annotation found in 48 A.L.R.2d 535, wherein it is stated at 536:

While the right to direct a verdict in favor of one or more of several defendants at the close of the plaintiff's case was at one time a disputed question, it now appears settled that the matter rests in the sound discretion of the trial court.

Thus, in the instant case, when, at the conclusion of plaintiff's evidence, it appeared to the trial court from the pleadings and pretrial proceedings that there existed a reasonable probability that Miss Bevis's codefendant, Pierce County, would present evidence bearing upon the...