Shea v. Olson

• Decision Date: 08 January 1936
• Docket Number: 25800.
• Citation: 185 Wash. 143,53 P.2d 615
• Court: Washington Supreme Court
• Parties: SHEA v. OLSON.

53 P.2d 615

185 Wn. 143

SHEA v. OLSON.

No. 25800.

Supreme Court of Washington.

January 8, 1936

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by Lois Shea against John Olson. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Roberts & Skeel and W. R. McKelvy, all of Seattle and Clifford M. Langhorne, of Tacoma, for appellant.

Cheney & Hutcheson, Walter J. Robinson, Jr., and Snively & Bounds all of Yakima, for respondent.

STEINERT, Justice.

Plaintiff brought this action to recover damages for injuries sustained by her in an automobile accident. Trial by jury resulted in a verdict in her favor. Defendant's motions for judgment notwithstanding the verdict and for new trial, respectively, were denied. Judgment on the verdict was entered, and defendant thereupon appealed.

The facts, which are practically without dispute, are as follows: On June 8, 1934, appellant, who was a resident of Tacoma, was attending a convention in Yakima. With him were two other young men from Tacoma. While in Yakima appellant happened to meet respondent, whom he had known for several years. In the course of their conversation on that occasion appellant and respondent arranged to make up a party to attend a dance the following night. At about 9:30 the next evening, appellant called for the respondent, as agreed, and took her to a hotel where the members of the party were to congregate. Respondent observed that appellant had been drinking, although he was not intoxicated. After arriving at the hotel, respondent went with one of appellant's companions to get another young lady who was to be a member of the party. The three returned to the hotel about 10:30 p. m. The entire party, composed of ten people, having assembled, some liquor was served. Respondent, herself, drank but a few sips of one gin fizz, but she was aware that, subsequent to the time that appellant had first called for her, he had imbibed more liquor. At about 11 o'clock the entire party left for the dance, in two coupé automobiles, one of them being owned and driven by appellant. Seated next to appellant in his car was the respondent, with one of the ladies on her lap. Next to them, on their right, were two of the young men, one sitting on the lap of the other. The other five members of the party occupied the other coupé.

About seven miles northeast of Yakima was a newly-opened roadhouse, known as ‘ Marie's Barn,’ which was off the paved highway, and on a graveled road. Thither the young people in the two cars went. On arriving at the place they found it crowded, and were unable to get seats at a table. They remained for only a short while, during which time some of the party, including respondent, danced, and the others, including appellant, repaired to the bar, where they drank either beer or hard liquor, or both. Respondent saw the appellant and other members of the party drinking liquor which they had brought with them. Among those present at the roadhouse were a number of people from Yakima who were friends of respondent, and who evidently had also driven out in their automobiles.

The party of ten concluded that they would return to Yakima and seek some other place where they could dance. Respondent and the young lady with her had some hesitation about riding with appellant, on account of his physical condition, and requested that one of the other two men drive the car. Both of the other men were willing, and offered to drive. Appellant, however, would not accede to this, insisting that he was able to do the driving, and promising, moreover, that he would drive slowly and carefully.

The other car, with its five occupants, left the roadhouse first and had proceeded some distance ahead when appellant started. On the return trip, the five persons in appellant's car were seated as before, except that respondent was sitting on the lap of the other young lady who, in turn, was sitting next to the appellant. The distance from the roadhouse to the paved highway was about a mile, over the graveled road. A short distance from its junction with the paved highway the graveled road turned to the left, almost at a right angle. Throughout its general length the graveled road was twenty-two feet wide; at the turn it was twenty-nine feet in width. A short distance from the point where the graveled road began to curve was a warning sign, and beyond it, where the road united with the paved highway, was a stop sign. The night was dark, and the graveled road was very dusty, on account of the traffic going to and from the roadhouse.

In his desire to overtake the other car, appellant immediately, upon leaving the roadhouse, proceeded to drive his car at a speed of from fifty-five to sixty miles an hour. The other occupants of the car protested against the excessive speed and warned appellant of the curve ahead. The speed, however, was not decreased. Just before coming to the curve appellant encountered a cloud of dust caused by a passing automobile. On reaching the curve he was unable to make the turn. As a consequence, the car went straight forward, off the road and down a decline, a distance of about fifty feet. As the car left the road, appellant exclaimed, ‘ Hold on, we are going over the bank.’ The car turned over, and, as a result, respondent sustained the injuries for which this action was brought. So far as the record discloses, none of the other occupants of the car were injured.

At the time of the accident there was in effect a statute, passed in 1933, which we quote in full, with heading and title:

‘ Liability of Motor Vehicle Operators .

‘ An Act releasing owners of motor vehicles from responsibility for injuries to passengers therein.

‘ Be it enacted by the Legislature of the State of Washington:

‘ Section 1. 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 a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator. [Rem.1935 Sup. § 6297-1]

‘ Sec. 2. This act shall not relieve any owner or operator of a motor vehicle from liability while the same is being demonstrated to a prospective purchaser.’ Rem.1935 Sup. § 6297-2, chapter 18, Laws 1933, p. 145.

Respondent was an invited guest within the meaning of section 1 of the act.

Respondent in her complaint alleged that her injuries were caused by the gross negligence and intentional act of the appellant. The answer consisted of a general denial and two affirmative defenses, one of them being contributory negligence. The court withdrew the issue of contributory negligence from consideration by the jury.

Under our view of this case, there are two questions to be considered and determined. The first question relates to the meaning to be given to the word ‘ intentional,’ as used in the above act.

It is apparent, from a reading of the complaint, that it was drawn upon a dual theory: (1) That appellant was guilty of gross negligence; and (2) that appellant's acts and conduct were so careless, reckless, wanton, and willful, and in such disregard of the inevitable consequences as to render the accident an intentional one, within the meaning of the statute.

Prior to the enactment of the 1933 statute, it had for years been the law of this state that a driver of an automobile was liable in damages to his invited guest, only for acts of gross negligence. Heiman v. Kloizner, 139 Wash. 655, 247 P. 1034; Saxe v. Terry, 140 Wash. 503, 250 P. 27; Klopfenstein v. Eads, 143 Wash. 104, 254 P. 854, 256 P. 333; Blood v. Austin, 149 Wash. 41, 270 P. 103; Dailey v. Phoenix Investment Co., 155 Wash. 597, 285 P. 657; Craig v. McAtee, 160 Wash. 337, 295 P. 146; Connolly v. Derby, 167 Wash. 286, 9 P.2d 93; Dawson v. Foster, 169 Wash. 516, 14 P.2d 458; Eubanks v. Kielsmeier, 171 Wash. 484, 18 P.2d 48; Meath v. Northern Pacific Railway Co., 179 Wash. 177, 36 P.2d 533.

In those cases gross negligence was defined as the want or absence of slight care. In the Craig and Eubanks Cases, supra, reference was made to a Connecticut statute which absolved the owner or operator of a motor vehicle from liability to a guest, in case of accident, unless such accident was intentional on the part of the owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. We held in the Craig and Eubanks Cases that the rule of liability for heedlessness and reckless disregard of the rights of others did not differ appreciably from the rule of liability for gross negligence. We shall have occasion, a little later herein, to refer to the Connecticut statute and the cases based thereon.

Respondent contends that the word ‘ intentional,’ as used in the statute, has reference, not merely to the accident considered as a result, but also to the various acts of the driver preceding, and apart from, the result. The argument is that because appellant intentionally drove the car at a rate of approximately sixty miles an hour, over a dusty road, in the vicinity of a curve, and intentionally failed or refused to heed the warnings given him, the jury had the right to find that the accident was intentional; further, that under the evidence it was for the jury to say whether or not it was appellant's intention to injure the respondent or any of the other occupants of his car. Authorities are cited to the effect that when the omission to exercise care is so gross that it shows an utter lack of regard for the safety of others, it will justify a presumption or finding of intention to accomplish the result. The court seems to have adopted...