Seitz v. McCullough

• Citation: 138 Ga.App. 147,225 S.E.2d 917
• Decision Date: 27 February 1976
• Docket Number: No. 51680,No. 2,51680,2
• Parties: J. C. SEITZ v. J. M. McCULLOUGH
• Court: Georgia Court of Appeals

Page 917

225 S.E.2d 917

138 Ga.App. 147

J. C. SEITZ v. J. M. McCULLOUGH.

No. 51680.

Court of Appeals of Georgia, Division No. 2.

Feb. 27, 1976.

Rehearing Denied March 17, 1976.

Nunn, Geiger, Rampey, Buice & Harrington, D. L. Rampey, Jr., Warner Robins, for appellant.

Martin, Snow, Grant & Napier, Charles M. Stapleton, Macon, Hubert A. Aultman, Perry, for appellee.

MARSHALL, Judge.

Appellant presents for review the single question of whether evidence of an odor of alcohol in his breath at the time of an accident is sufficient to raise an issue of his intoxication.

Appellant brought an action for personal injuries received as a result of an automobile collision with an ambulance, owned by appellee, funeral home, alleging that the latter pulled into his path of travel from a private driveway without warning. The funeral home defended and counterclaimed for damages to its ambulance alleging that the collision was proximately caused by the negligence of appellant 'in driving his vehicle while under the influence of alcoholic beverages.' The appellant moved for partial summary judgment as to the counterclaim contending that there was no issue of fact on the question of his alleged intoxication. In support of this motion he submitted an affidavit stating that on the night of the collision he had driven to the bus station in Macon, Georgia, to pick up his daughter; that on the way home they stopped to eat at a seafood restaurant; that he ordered a small glass of beer along with his meal; that he had only one or two sips of the beer after the meal; that after leaving the restaurant he vomited his supper; that his stomach was upset from having had a previous operation for stomach ulcers; that they got into his car and proceeded down the road where the collision occurred; that those two sips of beer were the only alcoholic beverages consumed by him that evening; and that he was not intoxicated at the time of the accident, 'had my car under control and my ability to operate my car and my faculties were not impaired by the intake of the small amount of beer I had had which I had lost.'

In opposition to the motion, appellee, funeral home relied upon interrogatories and depositions from the driver of the ambulance and its owner, that they smelled the odor of alcohol on the appellant's breath after the accident.

The trial court denied the motion and the case proceeded to trial. At trial the testimony on this issue was basically the same except appellant's daughter testified that her father did not appear to be drunk, and the physician who treated him at the hospital stated that he did not perform a blood alcohol test because he saw no reason to as there were no signs of any intoxication. There was also testimony from the investigating policeman that he too smelled alcohol on the breath of the appellant.

At the conclusion of the evidence, the judge instructed the jury, over appellant's objection: 'It is unlawful in this state for any person who is under the influence of intoxicating liquor to operate or drive any vehicle. Under Georgia law, a person is not necessarily under the influence of intoxicants merely because he has consumed some amount of alcoholic beverage, or because an odor of alcohol is present on his person. He is deemed under the influence when, because of the extent of his consumption of alcohol, it is less safe for him to operate a vehicle than it would have been had he not consumed to such an extent. It is for you to decide from the evidence presented to you whether or not the plaintiff was driving under the influence of intoxicating liquor as claimed by the defendant. A violation of this section would amount to negligence per se.'

The jury returned a verdict for the defendant funeral home on the main action and for the appellant on the counterclaim Held:

Appellant contends that the issue of driving under the influence should have been eliminated from the defensive pleadings, from the evidence during the trial and from the instructions to the jury because there was no evidence of his being 'under the influence of intoxicants.' This contention is not supported by citation of any Georgia authorities, but is based on cases from sister states. See Billow v. Farmers Trust Co., 438 Pa. 514, 266...