White v. Peters, 34384

• Decision Date: 04 September 1958
• Docket Number: No. 34384,34384
• Court: Washington Supreme Court
• Parties: Peter T. WHITE, Appellant, v. Robert D. PETERS, Respondent. George A. BUSTER, individually and as Administrator of the Estate of Marion R. Buster, deceased, Appellants, v. Robert D. PETERS and Jane Doe Peters, his wife, Respondents.

Page 824

52 Wn.2d 824

329 P.2d 471

Peter T. WHITE, Appellant, v. Robert D. PETERS, Respondent.

George A. BUSTER, individually and as Administrator of the Estate of Marion R. Buster, deceased, Appellants, v. Robert D. PETERS and Jane Doe Peters, his wife, Respondents.

No. 34384.

Supreme Court of Washington, Department 2.

Sept. 4, 1958.

Rehearing Denied Oct. 23, 1958.

Brethorst, Fowler, Bateman, Reed & McClure, Seattle, and Wayne R. Parker, Midway, for appellant White.

Croson, Johnson, Wheelon, and James F. Loveridge, Jr., Seattle, for appellant Buster.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Willard E. Skeel, O. M. Moen, Seattle, for respondents.

WEAVER, Justice.

Two law suits, springing from the same automobile collision, were consolidated for trial. The first action was commenced by Peter T. White, driver of one automobile; the second by his passenger, George A. Buster, individually and as administrator of the estate of Marion R. Buster, his wife, who died as a result of the collision.

In addition to a denial of his own negligence, defendant Robert D. Peters, the driver of the other automobile, pleaded that plaintiff White was chargeable with contributory negligence because (1) he had failed to have his car equipped 'with the proper required equipment specified by the State of Washington and his drivers' license because of his artificial right leg'; and (2) he had partaken of 'intoxicating liquors on the date of the accident' and had driven 'his said vehicle while affected thereby.'

In the Buster action, defendant Peters denied negligence and, as affirmative defenses, alleged (1) that any injuries Mr. and Mrs. Buster might have sustained were caused by the negligence of Mr. White, as outlined above; and (2) that Mr. and Mrs. Buster were chargeable with contributory negligence because they knew or should have known that Mr. White's car was not equipped with the proper hand-controlled equipment, as required by his driver's license. Neither in his original pleading nor in his trial amendment did the defendant allege that Mr. and Mrs. Buster were chargeable with contributory negligence in riding with Mr. White while he was allegedly under the influence of intoxicating liquor.

The jury returned a verdict for defendant Peters in both cases and granted him damages on his cross-complaint against plaintiff White.

Plaintiffs' (appellants') assignments of error present two issues: Did the facts justify an instruction concerning the alleged intoxication of plaintiff White? Did the trial court err when it instructed the jury concerning plaintiff White's restricted driver's license?

Since these cases must be remanded for a new trial, we set forth only those facts necessary to resolve the issues presented.

On the day of the accident, plaintiffs left their homes in the vicinity of Port Orchard and drove to Port Angeles, arriving about 11:30 a. m. At noon, they had sandwiches and coffee. Plaintiff White testified that he had one cocktail at lunch; that he and Mr. Buster went 'window shopping,' but returned to the lounge of the lodge hall--where Mrs. Buster was attending a meeting--where he slept until about 4:00 p. m. They then had a large banquet-style dinner and one whisky highball. Plaintiff White testified that the drink had no effect on him or his driving ability. They left Port Angeles about 5:15 p. m. The accident occurred at approximately 6:30 p. m.

Witnesses who were with plaintiff White, just prior to this departure from Port Angeles, told of the large dinner and testified to the fact that plaintiff had only one drink; that he was sober; that he was not under the influence of liquor; that he was not affected in any way and was normal in every respect. The state partrol officer who investigated the accident testified that he arrived at the scene of the accident about 6:50 to 6:55 p. m.; that 'I would say that he [plaintiff White] was sober * * * as I recall, I had no indication of his being under the influence.'

There is no evidence in this case that plaintiff White was affected in any way by the two drinks, and no evidence of conduct or appearance, from which a fair inference could be drawn, that he was under the influence of intoxicating liquor prior to or at the time of the accident.

It is prejudicial error for the trial court to submit an issue to the jury when there is no substantial evidence concerning it. Leavitt v. De Young, 1953, 43 Wash.2d 701, 707, 263 P.2d 592, and cases cited. Hence, it was error for the trial court to give instruction No. 16, which permitted the jury to consider plaintiff White's sobriety, and to give that portion of instruction No. 17, which permitted the jury to consider whether Mr. and Mrs. Buster, as passengers in Mr. White's car, knew or should have known that Mr. White was under the influence of or affected by intoxicating liquors.

This conclusion is supported by our decisions in Schalow v. Oakley, 1943, 18 Wash.2d 347, 139 P.2d 296, and Wood v. Myers, 1956, 48 Wash.2d 746, 296 P.2d 525.

In 1941, plaintiff White had his right leg amputated below the knee; thereafter, he wore an artificial limb. In 1942, he received, without a driver's examination, a restricted automobile driver's license that required that his car be equipped with a hand throttle mounted on the steering column.

Between 1942 and the time of the accident in 1955, some of Mr. White's automobiles were so equipped and others were not. He testified that he found it was not necessary for him to use the hand...