Opinion
No. 35920
Decided January 20, 1960.
Motor vehicles — Driving while intoxicated — Guest statute — Pleading — Wanton and wilful misconduct — Petition construed in favor of plaintiff.
APPEAL from the Court of Appeals for Wood County.
Plaintiff instituted this action in the Common Pleas Court of Wood County against the administrator of the estate of Herbert Harvey, Jr., and against Columbus Whitner.
In her amended petition, plaintiff alleges that the decedent Harvey parked a truck on the paved portion of Woodville Road in the lane next to the north side; and that about 11:10 p.m. plaintiff was riding in a Chevrolet sedan being driven westerly on Woodville Road by the defendant Whitner.
The allegations of the amended petition with respect to the conduct of defendant Whitner read as follows:
"Defendant Whitner * * * had had a number of alcoholic beverages, which caused him to become intoxicated and under the influence of intoxicating liquor, so that his reflexes were slowed and impaired, his ability and determination to maintain a lookout ahead in driving a car were impaired, and further the said intoxicating beverages which he had consumed caused defendant Whitner to be indifferent to the consequences of his acts, and further made him ready and willing to take chances in the operation of the said Chevrolet * * * even though the taking of said chances would mean danger for plaintiff and himself. Further, the consumption of the alcoholic beverages by defendant Whitner had so affected his senses that, while operating the said car from a point eastward on Woodville Road, where he had entered the same and had started to proceed westerly, it caused him temporarily to lose consciousness and to be unable to exercise a lookout ahead, and said defendant was aware of this, and further knew that he was likely to temporarily be affected by the said alcoholic beverages so that he could not maintain a lookout ahead even should he attempt to do so. The said consumption of alcoholic beverages by defendant Whitner had also so impaired his reflexes that he could not react as a person who was sober could react to any situation of danger that might be ahead, and said defendant knew that by reason of the same it was dangerous for plaintiff for him to continue to drive. * * * defendant Whitner * * * knew that trucks, cars and other vehicles at various times were stopped on Woodville Road, and in particular in the area here involved, and that the said parking and stopping of trucks or other vehicles on the paved portion was extremely dangerous to the occupants of the various vehicles proceeding on the said sections of Woodville Road. As defendant Whitner drove the said Chevrolet westward on the said Woodville Road, approaching at a speed of forty (40) miles per hour, or more, toward the position where the * * * truck was parked on the pavement, defendant Whitner knew, by reason of his aforesaid intoxicated condition, his readiness to take chances, his indifference to the consequences of his driving in such condition, and while knowing that he was not then maintaining, nor able to maintain, an effective lookout ahead, and that if there appeared ahead a parked vehicle, he very likely would not be able to avoid striking the same, although warned and although he knew that oftentimes trucks and other vehicles were so parked on the said sections of said Woodville Road, and while he knew that to drive without maintaining a lookout ahead and while in said condition, under the said circumstances, would in all probability result in serious injury to plaintiff, defendant Whitner did fail to maintain a lookout ahead and, although warned by plaintiff, who at all times herein mentioned was in the exercise of ordinary care for her own safety, of the presence ahead of the said stopped truck, was unable to and did not so direct the said Chevrolet so as to avoid a collision with the rear of the said truck, thereby causing a collision and plaintiff to be severely injured and damaged, as is more particularly hereinafter stated. At the time that plaintiff so warned defendant Whitner of the said truck, he probably could have avoided it, had he not been in the aforesaid condition and attitude." (Emphasis added.)
Plaintiff then "alleges that as a direct and proximate result of the * * * aforesaid collision and * * * wanton misconduct of" defendant Whitner she was damaged in certain respects and prays for a judgment of $20,000 against defendant Whitner and against the administrator of decedent Harvey.
The demurrer of defendant Whitner to the amended petition was sustained, and, since plaintiff did not desire to plead further, judgment was entered for defendant Whitner against plaintiff "without in any manner affecting the plaintiff's rights to proceed further * * * against" the administrator of the decedent Harvey.
On appeal to the Court of Appeals, that judgment was affirmed.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of plaintiff's motion to certify the record.
Mr. John G. Rust, for appellant.
Messrs. Ritter, Boesel, Holden Smith, for appellee.
Driving while intoxicated will not usually be sufficient in itself to justify submission to the jury of the question whether such driving amounted to wanton or willful misconduct. See O'Rourke, Admx., v. Gunsley, 154 Ohio St. 375, 96 N.E.2d 1.
However, the petition in the instant case alleges:
(1) That defendant Whitner knew
(a) that vehicles were often parked on the paved portion of the part of the road ahead of him,
(b) that he was so intoxicated that his ability to react to any situation of danger ahead was impaired and he could not maintain a lookout ahead, and
(c) that to drive, without maintaining a lookout ahead and while so intoxicated, would in all probability result in serious injury to the plaintiff;
(2) that, notwithstanding such knowledge, defendant Whitner
(a) drove at 40 miles per hour at night,
(b) did not maintain a lookout ahead, and
(c) collided with a truck parked on the paved portion of the road so as to cause injuries to plaintiff; and
(3) that defendant Whitner was so intoxicated that he was indifferent to the consequences of his acts and ready and willing to take chances even at the risk of danger to himself.
In our opinion, this alleged conduct of defendant Whitner was "such * * * as manifests a disposition to perversity." Unlike in Helleren, Admx., v. Dixon, 152 Ohio St. 40, 86 N.E.2d 777, it is not merely alleged that defendant Whitner took a chance on nothing happening. It is alleged that he knew that vehicles were often parked on the paved portion of the highway ahead of him and yet he drove at a fairly good speed at night although he knew he could not, because of his intoxicated condition, keep any lookout ahead. It is further specifically alleged that he was "indifferent to the consequences of his acts * * * and * * * ready and willing to take chances" even at the risk of danger to himself. Cf. Lombardo v. De Shance, a Minor, 167 Ohio St. 431, 433, note, 149 N.E.2d 914. Likewise, the petition specifically alleges that defendant Whitner knew that his conduct would "in all common probability result in injury" to the plaintiff. See Prosser on Torts (2 Ed.), 150. Thus, the petition alleges conduct that is such as to come within the definition of wanton misconduct set forth in Helleren v. Dixon, supra ( 152 Ohio St. 40), and Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R., 646.
It may be that plaintiff will be unable to produce evidence that will support a reasonable inference of defendant Whitner's wanton misconduct, or even that evidence as to the reason for his driving in such condition and at such speed at this time may be such as to prevent such an inference. However, we are confronted with the question whether plaintiff alleges such wanton misconduct in her petition. In deciding that question, the allegations of the petition must be liberally construed in favor of the plaintiff, and the plaintiff must be given the benefit of whatever can, by fair and reasonable intendment, be implied from those allegations. Glass v. McCullough Transfer Co., 159 Ohio St. 505, 112 N.E.2d 823.
Hence, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Common Pleas Court for further proceedings.
Judgment reversed.
ZIMMERMAN, TAFT, BELL and PECK, JJ., concur.
WEYGANDT, C.J., MATTHIAS and HERBERT, JJ., dissent.
I concur in the foregoing per curiam opinion with some reluctance. It is not difficult to envision, as a result of the sustention of this petition (even a qualified sustention), a flood of such petitions alleging drunkenness in an effort to circumvent the strict requirement of pleading wanton or wilful misconduct in guest-statute situations.
It has long been the rule that intoxication, even voluntarily induced, does not in itself constitute negligence. Nor is a premium put on drunkenness. Rather the intoxicated person is held to the same duty and responsibility as the sober one. And well he should be. The dismal list of sorrows and ills which flow from drunkenness, particularly on today's superhighways crowded with racing automobiles powered with high octane gasoline, is sad enough without adding new terrors by judicial construction.
I am of the opinion that the allegation of intoxication, no matter to what extent the intoxication is claimed to have progressed, does not of itself constitute an allegation of either wilful or wanton misconduct.
There are, however, in this petition sufficient allegations of matters claimed to be within the knowledge of defendant Whitner, e.g., the frequency of parked vehicles on the paved portion of the road and his propensity to lose consciousness and be unable to maintain a lookout, to enable us to give to plaintiff the benefit of whatever can reasonably and fairly be implied from these allegations.
In so pleading, however, the plaintiff may well have placed herself in an untenable position so far as her proof is concerned. If, as plaintiff alleges, Whitner was so intoxicated as to cause him temporarily to lose consciousness and be unable to keep a lookout ahead, and if he knew he could not, because of his intoxicated condition, keep any lookout ahead, the plaintiff may meet considerable difficulty in proving Whitner could form "an intention or purpose to do wrong" or intentionally deviate "from clear duty or from a definite rule of conduct." Tighe, a Minor, v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122. Similar difficulty may be encountered in proving Whitner could "be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury." Helleren, Admx., v. Dixon, 152 Ohio St. 40, 86 N.E.2d 777.
It might also be pointed out, in connection with this allegation that Whitner was aware that his intoxication caused him temporarily to lose consciousness, that if it should be shown that the accident was the result of his actually losing of consciousness such loss could hardly be considered a wilful or wanton act. But giving the allegation its most liberal construction, it may be construed to allege that Whitner had at one time lost consciousness, and knew he had, but had regained it prior to the accident.
Dissents for the reason that both the majority and concurring opinions significantly fail to explain just how it is possible for a defendant to first lose his reason by becoming intoxicated and then to subsequently exercise his lost reason by indulging in wilful misconduct.
MATTHIAS and HERBERT, JJ., concur in the foregoing dissenting opinion.