Wise v. Stagg

• Decision Date: 18 May 1933
• Docket Number: 7056.
• Parties: WISE v. STAGG.
• Court: Montana Supreme Court

22 P.2d 308

94 Mont. 321

WISE v. STAGG.

No. 7056.

Supreme Court of Montana

May 18, 1933

Appeal from District Court, Deer Lodge County; W. E. Carroll Presiding Judge.

Action by Lois Wise against Ira J. Stagg. Judgment for plaintiff and defendant appeals.

Remanded with direction to grant a new trial, unless plaintiff elects to file a remittitur.

ANGSTMAN J., dissenting in part.

R. F. Gaines, of Butte, S. P. Wilson, of Deer Lodge, and J. B. C. Knight, of Anaconda, for appellant.

P. E. Geagan and Edwin M. Lamb, both of Butte, for respondent.

ANDERSON Justice.

Plaintiff brought this action against the defendant to recover damages for personal injuries.

The plaintiff, a young unmarried woman twenty-four years of age, accepted the invitation of the defendant, a married man, to accompany him one evening in the month of September, 1929, from her home in Anaconda to Meaderville for a raviola dinner. The parties to this action, in the defendant's automobile, arrived at their destination about 7:30 in the evening. They visited a café in Meaderville, where they remained until approximately 8:30 or 9 o'clock, when they started for home. It appears intoxicating liquors could be easily secured at the café; during their stay the defendant purchased two bottles of wine, of which they consumed about one-half of one bottle. The residue of the wine they took with them. Following their dinner, they started for Anaconda in defendant's automobile. After proceeding a short distance, the defendant discovered his failure to pay for the dinner, and they returned to the café, plaintiff remaining in the car, and the defendant was absent for a period of some fifteen or twenty minutes. Thereupon they resumed their journey and proceeded to a roadhouse known as the Plantation, located on the highway between Butte and Anaconda. There they remained for a time. While there the defendant, in the presence of plaintiff, drank two or three whisky highballs. Plaintiff testified that she drank an equal number of drinks, the last of which was a drink of whisky, the others being beer. While the parties were at the Plantation, a scuffle ensued between them over a drink of whisky, and as a result it was spilled on the dress of plaintiff, to her displeasure and the ruin of her garment. It appears from the record that for something like a year plaintiff had been "going out" with the defendant, had attended similar dinners and drinking parties in Meaderville.

Plaintiff testified that at about 10:30 she was angry and in a hurry to return home, and, in furtherance of her desire, said, "Come on, let's go home." To this defendant replied, "All right." On the outside of the roadhouse she said, "You let me drive home," to which the defendant responded, "No, I am perfectly all right. I can drive." Her explanation as to her desire to drive the car home was that she was in a hurry and on previous occasions he had not proceeded home as rapidly as she desired; furthermore, she knew the defendant had been mixing his drinks, and she was doubtful as to what their effect on him would be, fearing, among other things, that he might fall asleep, and thus allow the automobile to run into the ditch, or run into something. She testified that on a number of occasions the defendant had, when driving the car after drinking, or otherwise, developed a sleepiness while driving, and that on all such occasions with his consent and at his request she had driven his car; she had so driven his automobile about ten different times.

The parties then proceeded toward Anaconda over the highway, defendant driving; after proceeding approximately a mile and a half plaintiff thought he was sleeping and "poked him and said, 'Hey."' At that time defendant was driving all right, and "the automobile was on the right side of the road," and "hadn't started to go out of a straight line." As they continued along the highway, plaintiff observed the bright lights of an approaching automobile around a curve. Simultaneously she observed that the defendant's head was drooping, and that then he "nodded his head up" and pulled the car to the left several feet. The collision between defendant's automobile and the other car ensued. Plaintiff, as a result of the collision, was rendered unconscious and recovered her senses at the hospital in Anaconda. Her nose was broken, and about half of one ear was practically severed. She suffered cuts under the chin, on the throat, and on the inside of her left leg below the knee. The severed portion of the ear was restored to its former position with the aid of some eighteen stitches. The plaintiff was in the hospital for approximately ten days, and under the doctor's care for two months. Scars, after her recovery, remained under her chin and on the throat and on the inside of the left leg. The ear as a result of the injury was somewhat smaller, but her recovery in that respect was such that the injury was not readily noticeable.

The defendant offered no evidence, and at the close of plaintiff's case moved for a directed verdict, which was denied. The trial court instructed the jury. A verdict for the plaintiff was returned in the sum of $6,500. Motion for new trial was made, heard, and denied. The appeal is from the judgment on the verdict as rendered.

Defendant contends that the trial court was in error in failing to grant his motion for a directed verdict, upon the ground that from the evidence offered as a part of plaintiff's case she was guilty of contributory negligence as a matter of law. The same question was raised by defendant on objections to the giving of certain instructions, as well as on motion for new trial.

Defendant argues that the immediate cause of the collision was his act in falling asleep behind the wheel of the automobile which he was driving, and that the plaintiff negligently exposed herself to the probable consequences of such conduct on his part. Apparently his arguments proceed upon two theories: Either (a) that he was intoxicated at the time of the injury, or (b) that, if he was not intoxicated, he had a habit of falling asleep at the wheel, which was known to the plaintiff, and in either event it was contributory negligence for the plaintiff to proceed from the Plantation with defendant.

Generally, the question of contributory negligence is one of fact for the determination of the jury. It is only when but one reasonable conclusion can be reached from the facts that the court will determine the question as a matter of law. Mullins v. City of Butte, 93 Mont. 601, 20 P.2d 626.

The only evidence with reference to defendant's intoxication was that he, together with plaintiff, had drunk one-half of a quart of wine between 7:30 and 8:30 in the evening, and that between 9:30 and 10:30 of the same evening defendant drank either two or three whisky highballs; also during the period of time from 7:30 until 10:30 there were two intervals of from fifteen to twenty minutes each during which defendant was without the sight of plaintiff in places where intoxicating liquors were sold. No witness on the trial of the case expressed an opinion to the effect that defendant was intoxicated at any time on the evening in question. The evidence discloses no improper handling of the automobile until immediately preceding the collision. It appears from the record that there was passing the Plantation an hourly bus service between Butte and Anaconda, which accepted passengers at any point along the highway upon being flagged, all of which was known to the plaintiff. She was acquainted with the proprietors of the roadhouse and also with a girl by the name of "Laura," the piano player who was present at the time of their departure, on the evening in question.

If it could be said from the evidence that it was known to the plaintiff that the defendant was intoxicated, or that his intoxicated condition was palpably apparent to her, and if under these circumstances plaintiff then, as an ordinarily reasonable and prudent person, would not have entered the automobile driven by defendant, contributory negligence would follow as a matter of law. The evidence may have been sufficient to warrant such a finding, but we cannot say from the evidence in this record that the condition of defendant was one of intoxication or that he was apparently intoxicated, as the only reasonable conclusion from the testimony. Therefore the question of contributory negligence on the theory of intoxication of the defendant was one for the jury.

In the following cases, under somewhat similar facts wherein the defense of contributory negligence was urged, courts have held the question of contributory negligence of the guest riding with a driver who had partaken of intoxicating liquor with the plaintiff in the particular case, or was known to have partaken of the same by the plaintiff, to be properly a question for the jury. Wolden v. Gardner, 159 Wash. 665, 294 P. 574; Jensen v. Chicago, etc., R. Co., 133 Wash. 208, 233 P. 635; O'Connell v. McKeown, 270 Mass. 432, 170 N.E. 402; Rau v. Smuda, 175 Minn. 328, 221 N.W. 232; Beckman v. Wilkins, 181 Minn. 245, 232 N.W. 38; Jennes v. City of Norwich, 107 Conn. 79, 140 A. 119; Denham v. Taylor, 15 La. App. 545, 131 So. 614; Anderson v. Pickens, 118 Cal.App. 212, 4 P.2d 794. Compare McNair v. Berger, 92 Mont. 441, 15 P.2d 834.

The plaintiff testified with reference to the defendant's conduct: "I knew before the night of this accident and before I left my home that Mr. Stagg did have that failing--trouble of going to sleep when he was driving an automobile at night." But "he always asked me to drive the car for him." She testified that he would say "You had better drive." When she made the suggestion at the time they were leaving the Plantation...