Shaw v. Browning

• Decision Date: 07 December 1961
• Docket Number: No. 35849,35849
• Parties: Vivian SHAW and William S. Shaw, her husband, Respondents, v. John BROWNING and Mildred H. Browning, his wife, Appellants.
• Court: Washington Supreme Court

Page 133

59 Wn.2d 133

367 P.2d 17

Vivian SHAW and William S. Shaw, her husband, Respondents, v. John BROWNING and Mildred H. Browning, his wife, Appellants.

No. 35849.

Supreme Court of Washington, Department 1.

Dec. 7, 1961.

Edwin R. Johnson, James P. Healy, Tacoma, for appellants.

Frederick B. Cohen, Bremerton, for respondents.

HILL, Judge.

The jury, in this case, returned a verdict for damages in the sum of $813.43 for personal injuries which, assuming the injured plaintiff was entitled to recover, was grossly inadequate. The trial court granted a new trial limited to damages.

The defendants appeal, urging: (1) that judgment should have been entered on the verdict; and (2) if a new trial is to be granted, it should be on all issues. As a corollary to (2), it is urged that there were two instructions given by the trial court which were erroneous and may have influenced the verdict on the issue of liability.

The first contention is completely without merit.

The verdict was in the exact amount of the doctors, dentist, and hospital bills enumerated in the court's instruction, i. e., $458.43, plus the conceded damage to the plaintiffs' car in the sum of $355--a total of $813.43. Leaving aside all questions of permanent injury, it was conceded that the injured plaintiff had a tooth broken off and sustained bruises, lacerations, and contusions. Her knee was in a cast and, after the cast was removed, she was on crutches for some time. It is indisputable that she sustained pain and suffering, and very clear that the jury did not intend to compensate her for them ¹. Counsel for defendant recognized the inadequacy of the verdict and suggested the addition of 'another four or five hundred dollars,' as a possibility, in lieu of a new trial. Ide v. Stoltenow (1955), 47 Wash.2d 847, 289 P.2d 1007, is squarely in point on the necessity for a new trial.

The second contention: That if there is to be a new trial it should be on all phases of the case, merits serious consideration. If there was a close question on the issue of liability, we would agree that this was a compromise verdict and that our holding should be governed by our cases holding that where there was a compromise verdict, the issue of liability and damages should both be retried. Vaughn v. Bartell Drug Co. (1960), 56 Wash.2d 162, 351 P.2d 925; Myers v. Smith (1958), 51 Wash.2d 700, 321 P.2d 551; Greenwood v. Olympic, Inc. (1957), 51 Wash.2d 18, 315 P.2d 295. See Annotation 29 A.L.R.2d 1199.

It is, therefore, necessary to review the issue of liability.

Two married women, Vivian Shaw and Mildred H. Browning, visited two taverns while out for a ride in an automobile owned by the Shaws, but being driven by Mrs. Browning at the time of the collision. On entering a posted arterial, Mrs. Browning failed to yield the right of way and collided with an automobile driven by Carmen Van Slyke. No explanation or reason was offered. Neither Mrs. Browning nor Mrs. Shaw has any recollection of the collision.

The negligence of Mrs. Browning, in failing to yield the right of way to the car on the arterial, is, under the evidence, not debatable. There is no merit in the defendants' corollary assignment of error: That the court should not have instructed that the negligence of Mrs. Browning, in the operation of the Shaw automobile, was established.

The defense was that Mrs. Shaw permitted Mrs. Browning to drive, when Mrs. Shaw knew, or should have known, that Mrs. Browning was under the influence of intoxicating liquor, and that Mrs. Shaw was therefore contributorily negligent and assumed all risks.

There was evidence of drinking. Mrs. Browning conceded that she had had a jigger of whiskey and two beers in the two and a half hours preceding the accident. Mrs. Shaw didn't know about the jigger of whiskey, but she thought it was three beers instead of two. There was no testimony concerning any unusual actions or conduct by Mrs. Browning, except that in the second of two taverns they visited she had an argument with the bartender; she made some uncomplimentary remarks about the place, then apologized, said she was sorry, and shook hands with the bartender.

The trial court properly presented the issue to the jury of whether Mrs. Shaw knew or should have known that Mrs. Browning was under the influence of intoxicating liquor; and, if she was, whether that was a proximate cause of the collision which caused the plaintiff's injuries.

However, the court in an additional instruction, explaining what is meant by 'under the influence of intoxicating liquor,' added two sentences '* * * The law recognizes that a person may have drunk liquor and yet not be under the influence of it. It is not enough to prove merely that a driver had taken liquor.'

The first sentence is subject to no greater vice than being a redundant statement, rephrasing what had already been stated, but the last sentence is clearly objectionable. If there was no other evidence of Mrs. Browning's having been under the influence of intoxicating liquor, as the trial court seemed to believe ², than that she had had a jigger of whiskey and two or three beers, the jury was entitled to conclude, on the basis of that instruction, that they could not find that she was under the influence of intoxicating liquor; and that may well have been the basis of their decision on that issue. There certainly comes a point where the amount 'taken,' in itself, proves that the driver was under the influence of intoxicating liquor. What if there was no other evidence of being under the influence of intoxicating liquor, except that she had 'merely' taken three jiggers of whiskey and six glasses of beer in the two and a half hours preceding the collision?

If a jury concluded that a jigger of whiskey and two glasses of beer, in the two and one half hours preceding a collision, proved that a driver was under the influence of intoxicants, we would not say them nay. Indeed, such evidence, comparing her condition with that of the plaintiff, Mrs. Shaw, would seem quite conclusive.

The state patrolman, who...