Powell v. Berry , 145 Ga. 696 ( 1916 )

Lumpkin, J.

(After stating the foregoing facts.)

1. Voluntary drunkenness furnishes no excuse for negligence; nor does it relieve a drunken man from exercising the degree of care required of a sober man in the same circumstances. If a person is required to use ordinary care, this means that care, which every prudent man would exercise under similar circumstances. In taking the conduct of évery prudent man as a standard, reference is made to the normal man; that is, the sober man. Ordinary care is not to be measured by what every prudent drunken man would do under like circumstances, but what every prudent sober man would do under like circumstances. If ordinary care under certain circumstances would require that a certain thing should be done, the requirement is binding on a man whether sober or drunk; and getting drunk will not relieve the person from that duty. To hold otherwise would be to put a premium upon drunkenness. Woollen & Thornton on Intoxicating Liquors, §§ 1184 et seq. A similar rule has been applied in holding that voluntary drunkenness furnishes no excuse for crime. If ordinary care is not the measure of diligence required in the particular case, what is said above is equally applicable to the degree of diligence which is required.

2. As drunkenness does not furnish an excuse for negligence, neither does it constitute negligence as matter of law. It is possible, whether probable or not, for one man to act with the care of a prudent man while intoxicated, and for another to act with a lack of ordinary care while sober. If the conduct of the drunken man measures up to the standard fixed by law, the drunkenness alone will not authorize a recovery for an injury caused by him. Still it is one of the facts entering into the transaction, and is provable as such. It is not negligence per se for a man to have a defective vision, or to have an impotent hand; but if a person so afflicted should undertake to drive a powerful automobile on a crowded thoroughfare, and injury should occur from a collision with another passer, the condition of the driver of the machine would be a provable fact, under proper allegations, for considertion by the jury in determining whether in his entire conduct he was negligent. It is not negligence per se to have a cork leg. But it may be negligent for a man with a cork leg to cbase and seek to board a moving train. Or the condition of a passenger, known to a carrier, may have an effect upon what due care requires of the carrier.

As liquor may affect not only the brain, but the nerves, the muscles, and the eyesight, if a person voluntarily becomes intoxicated, and in that condition undertakes to drive an automobile, and injury results to another from the negligent operation of it, his condition would be a fact for the consideration of the jury, in determining whether he acted with diligence or negligence. Or, if injury should result to him, and he should bring suit, whether he had voluntarily created a condition which affected his action is a matter which the jury may consider in determining whether he was diligent or negligent. It has sometimes been said that this condition of the person whose act is under consideration is a part of the res gesta of the transaction. One riding in an automobile is bound to use ordinary care for his own safety. If there should be evidence tending to show that he voluntarily became so intoxicated as to be unable for that reason to exercise ordinary care, and did so fail, and that by the use thereof he could have avoided the consequences to himself of the negligence of the driver, such question would be one for the jury, under proper instructions. One riding in a car driven by another, though a mere guest and having no control over the person driving the car, may be guilty of such negligence as to preclude a recovery for a personal injury resulting from negligent operation of the car. If a driver, from intoxication, is in a condition which renders him incapable of operating it with proper diligence and skill, and this is known or palpably apparent to one entering the ear, this is a fact which may be proved for the consideration of the jury, along with other facts, to throw light on the question of whether such person exercised ordinary care in entering the car or in remaining in the car, or in reference to his conduct while in it. So, if a guest took drinks of liquor with the owner and driver of the ear, some of the liquor being furnished by the owner and some by the guest, this may be shown for the purpose of aiding in the determination of whether the guest was negligent. See, in this connection, Rollestone v. Cassirer, 3 Ga. App. 161 (4), 174 (59 S. E. 442); 1 Shear. & Redf. Neg. (6th ed.) §§ 93, 110, and notes.

In some States statutes have been enacted which are commonly known as civil damage laws, which give a right of action against liquor dealers to innocent parties who sustain' injury by the intoxication of persons supplied with liquor by the dealers, or the consequences" of such intoxication, or by the acts of the intoxicated persons, or by the furnishing of liquor to minors or drunkards. The action so given is entirely statutory; the elements necessary for a recovery are dependent upon the particular statute; and a discussion of decisions based upon them will be omitted, though some of them deal with the subjects of proximate cause and contributory negligence. Black on Intoxicating Liquors, §§ 277 et seq.

In some jurisdictions there are decisions declaring that the jury can be instructed that particular acts do or do not constitute negligence which will, or will not, authorize or prevent a recovery. But in this State, as a general rule, whether an act is negligent is a question for the jury; and except where a given act is forbidden, and rendered negligent per se as to the injured person, or an act is commanded and its omission rendered negligent, by a statute or valid municipal ordinance, the presiding judge should not instruct the jury what ordinary care requires to be done in a particular case. Atlanta & West Point R. Co. v. Hudson, 123 Ga. 108 (51 S. E. 29), and cit.; Central of Ga. Ry. Co. v. Cole, 135 Ga. 72 (68 S. E. 804); Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635 (6), 636 (70 S. E. 249). Nevertheless, in some eases, the undisputed facts may be so clear as to leave no room for a jury to find save one way, and the question may become one of law and be dealt with on demurrer or motion for a nonsuit. This case is not of that character. The evidence as to the condition of the parties, and how the drinking began, was not so clear as to authorize the judge to declare as matter of law the status of each as to negligence. The defendant did admit in his amended answer his intoxication. In this State also the doctrine of comparative negligence prevails, and it is not all negligence which contributes to an injury that will necessarily prevent a recovery. Civil Code (1910), § 4426. This case was before the Supreme Court in 143 Ga. 59 (84 S. E. 121), on exception to the overruling of a demurrer. What was said in the opinion, in reference to there being nothing to show that the decedent himself was aware of the defendant’s condition, must be considered in the light of the question then for decision, and not as ruling that the court should give charges like those requested on the trial.

Evidence that while the plaintiff’s son was riding with the defendant in the automobile of the latter they took several drinks together, and then went to a place where the plaintiff’s son procured three bottles of liquor, from which they took additional drinks, and that the injury occurred while they were returning from such place, would not require the giving of a charge that if they were on the same mission, or on a joint pleasure trip or a common undertaking, and were • using the automobile for that purpose, the plaintiff’s son was under a duty to take “the necessary steps” to prevent the negligence of the owner of the machine and to prevent any injury to himself. The evidence on this subject was for the consideration of the jury in determining the diligence or negligence of the parties. But it did not require the giving of the requested instruction as stated.

3. The case naturally divides itself into two parts: (1) Was the plaintiff entitled to recover at all, or not? (2) If so, what was the measure of damages ? Relatively to the conduct of the defendant, and its effect on the right to recover at all, the crucial questions would be, did he fail to exercise that degree of care which the law required of him, and, if so, was such failure the proximate cause of the death of the plaintiff’s son? Relatively to that of the plaintiff’s son, and its effect on the right to recover at all, they would be whether he was negligent, and, if so, whether his conduct was such as to prevent a recovery for his homicide. This is only a brief outline ©f the points, and not a full statement of them. But the acts of the parties, their condition, and the like would be matters for consideration in determining the controlling questions. Most of the requests to charge were defective in undertaking to state, in effect, that certain specific things would constitute negligence, or prevent a recovery, and in some instances even without making reference to their possible effect in connection with the injury. Some of the requests were covered by the general charge. The presiding judge may have charged somewhat briefly on the subject of the condition of the parties as to intoxication; but it is unnecessary to discuss each of the various requests at length, and to point out specifically the inaccuracies of some, and to show where others were sufficiently covered by the charge.

4. The decedent conducted a dairy. On the subject of the measure of damages the court gave the following charge: “You look to the testimony, and determine what the gross receipts from the dairy were, and then you take all the expenses that contributed to this fund, the rent of his land, and any expenses that he incurred in and about the running of his dairy, and the difference between the total expenses and the total receipts would be his net earnings, and that 'would be his average yearly loss; and you multiply his average yearly loss by the expectation of years, and that would give you the gross amount of the plaintiff’s recovery.” It was error to assume that if a man at a particular time was deriving a certain net income from a dairy business, the same net income would continue during his expectation of life and would represent his earning capacity, and to charge in effect that the net loss for one year, or even the average for several years, multiplied by the number of yéars of the dairyman’s life expectancy, would give the gross loss, or, as the court expressed it, “the gross amount of the plaintiff’s recovery.” This was error for two reasons : first, the question to be determined was as to the. average earning capacity of the decedent, not the actual net earnings of his business; and second, it left out of consideration altogether any contingencies, and took it for granted that the net earnings of the dairy business in the future would be the same as those in the past, and would represent his earning capacity during life.

5. It has been held not to be error requiring a reversal, in the absence of a request, to omit to charge on the subject of reducing damages by reason of negligence on the part of the injured person, unless perhaps one party or the other raises such question in his pleadings; although it is the better practice to do so where the evidence authorizes such a charge.

Except as herein indicated, there was no error requiring a reversal.

■ In the foregoing discussion no reference has been made to what is lmown as the automobile law of 1910, amended in 1913, and embodied in 1 Park’s Code, § 828 (a) et seq., and 6 Park’s Code, § 528 (c). Neither party invoked that statute or treated it as applicable to the facts of this case. And we have dealt with the case as made.

Judgment reversed.

All the Justices concur.