Wright v. Tate

• Decision Date: 08 September 1967
• Citation: 208 Va. 291,156 S.E.2d 562
• Court: Virginia Supreme Court
• Parties: Homer Neal WRIGHT v. Fred B. TATE, Jr., Administrator, etc.

Page 562

156 S.E.2d 562

208 Va. 291

Homer Neal WRIGHT v. Fred B. TATE, Jr., Administrator, etc.

Supreme Court of Appeals of Virginia.

Sept. 8, 1967.

Stuart B. Campbell, Jr. Wytheville, (Campbell & Campbell, Wytheville, on brief), for plaintiff in error.

James L. Warren, Narrows, Aubrey R. Bowles, Jr., Richmond, (Bowles & Boyd, Richmond, on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

SNEAD, Justice.

Leslie Robinson Wright, a guest passenger in an automobile operated by Homer Neal Wright, defendant, was fatally injured when the vehicle ran off Route 606 in Bland county and struck a tree. Fred B. Tate, Jr., Administrator of the estate of Leslie Robinson Wright, plaintiff, brought an action against defendant to recover damages for the wrongful death of his decedent.

In his motion for judgment plaintiff alleged, Inter alia, that defendant was intoxicated at the time of the accident and drove his vehicle 'in a grossly negligent manner'. Defendant, in his answer denied the allegations and interposed the defenses of contributory negligence and assumption of risk. After overruling defendant's motions to strike plaintiff's evidence made at the conclusion of the plaintiff's evidence and again at the close of all the evidence, the case was submitted to a jury, who returned a verdict for plaintiff in the sum of $20,000. The trial court overruled defendant's motion to set aside the verdict and entered judgment thereon. Defendant is here upon a writ of error awarded to that judgment.

In his assignments of error defendant claims that the court erred (1) in overruling his motion to strike plaintiff's evidence; (2) in granting certain instructions; (3) in amending certain instructions, and (4) in refusing to set aside the verdict.

On the afternoon of July 18, 1964, Leslie Robinson Wright, plaintiff's decedent, and five of his friends, namely: Latha Spangler, Jimmy Spangler, Kermit Gussler, Gary Carroll and Homer Neal Wright, the defendant, met at Blankenship's store at Hollybrook in Bland county. Shortly thereafter it was decided that they would drive to a restaurant on Cloyd's mountain, a distance of about 20 miles, and purchase some beer. The group got into defendant's automobile and he proceeded to drive them to the restaurant.

The evidence clearly established that defendant was under the influence of intoxicants at the time the group left Hollybrook. Defendant testified: 'Evidently I was drunk or had been drinking.' According to Kermit Gussler, who had not consumed any alcoholic beverages, it was obvious that defendant had been drinking and he 'was what you might say high.' At times defendant operated the car at an excessive speed and 'about everybody said something' to him about the manner in which he was driving. Gary Carroll described defendant's driving as 'reckless' because he was '(t)aking the inside on turns; taking unnecessary chances.' Both Gussler and Carroll stated that they were 'scared'.

Upon arrival at the restaurant on Cloyd's mountain, two cartons of beer were purchased. While the car was stopped there, Gussler asked permission to drive on the return trip because of defendant's condition and the reckless manner in which he had operated the vehicle. His request was refused and he then made an unsuccessful attempt to have the group 'hitchhike' with him rather than ride in the automobile. Plaintiff's decedent, Leslie Wright, told Gussler that he thought he (Gussler) 'ought to drive back.' However, the group left the mountain in the car and proceeded back toward Hollybrook. Defendant continued to drive in a reckless manner.

On the way some of the beer was opened and it was found to be frozen and undrinkable. Defendant then 'asked the boys for a drink of liquor and they said they didn't have any, and he (defendant) said, 'Give me a drink or I'll kill you.' And the boys said, 'Well I'll give you a drink if you'll slow down some.' And they handed it up to him.' Defendant drank some of the whiskey.

The group stopped at the home of Latha Spangler, about three miles from Hollybrook, 'to put some water in the car because it was hot.' There, Gussler again asked the occupants to 'hitchhike' back home but none agreed.

After leaving the Spangler home, defendant continued to drive in a reckless manner. Gussler said that just before the accident defendant was driving 'a little better than 60' on an uphill grade of the road which was 'crooked'. 'He passed a truck on a turn, a blind turn. He didn't drive too fast, but he got off the road then, and just before he wrecked he speeded up some and was over on the wrong side of the road and just about hit a mail box. I remember that because some of the boys was laughing about having to buy a new mail box. And then I was kind of laying down on the back seat and the next thing I knew we hit the tree.'

Trooper W. R. Fisher was notified of the accident at approximately 8:40 p.m. and proceeded to the scene. He described the road there as being about 18 feet wide and having a series of 'S' curves. His investigation disclosed that defendant's vehicle traveled 262 feet along the ditch and bank before it struck the tree.

Leslie Wright, plaintiff's decedent, and one of the Spangler boys died as a result of the accident. The other occupants of the car received severe injuries.

Plaintiff's decedent, who was 22 years old at the time of his death, was single, resided with and supported his parents. His sister, Vieda Wright, testified that plaintiff's decedent dropped out of school about the fifth or sixth grade and worked as a farm laborer; that he could 'read and write to an extent, and some things he could learn'; that he 'never could learn like other children' and was called 'Dummy'; that he was able to do the chores that are normally required on a farm, and that he lacked initiative.

Fred B. Tate, Jr., Leslie Wright's brother-in-law, testified: 'He (Leslie Wright) was strong and he could do anything like manual labor that you'd want him to. * * * He couldn't operate a piece of machinery because he just didn't have the knowledge to get out of the way, and picking up corn and running it through a harvester, which is dangerous, we wouldn't let him do that. You have to watch him real close, and the first time he tried to do that I saw that he couldn't do that. We put him to cutting corn and leveling off the silo or something like that * * *. He was capable of doing that as good as anybody could.'

At the time of his death, Leslie Wright was employed as a general farm worker by Rex Morehead. Morehead stated that Leslie Wright could not be trusted 'very far on his own'; that '(h)e wasn't capable of thinking for himself, or he would complete some small job, and he just couldn't go on to anything else. He would be digging postholes on a few occasions, and if you weren't there to tell him to go to the next post hole he would just keep digging. He couldn't understand where to quit.'

James Gordon Gussler, Kermit Gussler's uncle, who was engaged in the sawmill and mining business, formerly had employed Leslie Wright's father. He had occasion several years before the accident to observe plaintiff's decedent when he worked with his father 'in getting out the mining timbers'. James Gussler said that Leslie Wright was not 'mentally capable. You'd tell him to do something and then he would be off on something else, and you couldn't have him around machinery.'

Kermit Gussler and Gary Carroll, close friends of plaintiff's decedent, also testified as to his capabilities. Kermit Gussler said that he saw Leslie Wright daily; that he had on occasions worked with him; that he 'wasn't what you'd call too bright, but everybody liked him and he worked good and everything', and that he 'was just not too smart and he couldn't learn anything.' Carroll stated that Leslie Wright did not have the mind of an ordinary person his age, and that he did not know whether pl...