Western States Grocery Co. v. Mirt , 190 Okla. 299 ( 1942 )

Plaintiff Mirt brought this action for damages for personal injuries received as the result of a collision between an automobile driven by him and a truck of Western States Grocery Company driven by its employee, Creson. From a verdict and judgment for plaintiff, defendants appeal.

The collision occurred October 9, 1938, at about 3 o'clock a.m., on the main street of Bethany. Plaintiff and a companion were traveling west, and two of defendant's trucks were proceeding east. The car driven by plaintiff collided with the second or rear truck, which was driven by defendant Creson. Plaintiff was injured and his car was badly wrecked. The street, which is a part of highway 66, is paved with concrete 18 feet wide, and adjoining the concrete on the north side is 6.5 feet of asphalt. On each side of the pavement is an unpaved strip for parking. The trucks of defendant Grocery Company traveling east would rightfully use the south side of the street, and plaintiff, going west, the north side. There was ample space for them to pass each other, but both were apparently crowding the center line.

1. Defendants contend that the trial court committed reversible error in refusing to give instruction on contributory negligence requested by the defendants, which is as follows:

"You are instructed that under the testimony the defendants have plead as one of their defenses of (sic) contributory negligence, that is to say, that the plaintiff, Roy Mirt, was under the influence of intoxicating liquor at the time of this accident.

"You are instructed that the phrase 'under the influence of intoxicating liquor' means that if intoxicating liquor has so far affected the nervous system or brains or muscles that will tend to impair the ability of one to operate an automobile in the manner of an ordinarily cautious man, in the full possession of his faculties would operate or drive under like conditions, then the driver is under the influence of intoxicating liquor.

"If you should find that the plaintiff was under the influence of intoxicating liquor as above defined and that that constituted negligence on his part and if that directly or proximately caused or contributed to the accident and resulting injuries, then you are instructed you should return a verdict for the defendants, even though you should find that they were also guilty of negligence."

Defendants in their answer alleged that plaintiff was guilty of three acts of contributory negligence: (a) that he was driving while under the influence of intoxicating liquor, (b) that he was driving at a high and dangerous rate of speed, and (c) that at the time of the accident he was driving his automobile to the left of the center of the highway. Several witnesses testified that plaintiff's breath smelled of liquor when they talked to him shortly after the collision, and two, who testified that they were in a car a short distance behind the trucks, testified that as his car approached the trucks it was weaving back and forth across the center line of the concrete highway. Both truck drivers testified to the same effect. There was also considerable evidence that plaintiff's companion was drunk after the accident occurred. This companion did not testify. Plaintiff denied that he had been drinking prior to the collision, and several witnesses testified that after the collision he did not appear to be under the influence of intoxicants, and that his breath did not smell of liquor. The evidence was sufficient to require that this issue be submitted to the jury. The condition of plaintiff was a material issue, upon which the defendants were entitled to have the jury instructed. The only reference thereto in the instructions was contained in those which advised the jury of what issues were made by the pleadings. The court did not instruct on the law of drunken driving.

We think the defendants were entitled to have said requested instruction or a similar one given. If plaintiff was driving his car on a public highway while under the influence of intoxicating liquor, he was guilty of negligence per se. Section 10324, O. S. 1931, 47 O.S.A. § 93; Chicago, R.I. P. Ry. Co. v. Pitchford, 44 Okla. 197, 143 P. 1146; 45 C. J. 720, § 103. The requested instruction did not tell the jury that such negligence, if established, constituted contributory negligence, but it properly defined intoxication (Luellen v. State, 64 Okla. Cr. 382, 81 P.2d 323) and told the jury that if it found that plaintiff was guilty of such negligence, and further found that such negligence directly and proximately caused or contributed to the injury, he could not recover. This did not invade the province of the jury. It left to the jury the determination of the vital factors, negligence and proximate or contributing cause. St. Louis S. F. Ry. Co. v. Elsing, 37 Okla. 333, 132 P. 483; Hailey-Okla. Coal Co. v. Morgan, 39 Okla. 71, 134 P. 29. Such an instruction does not contravene section 6, art. 23, of the Constitution. Instructions which directed the attention of the jury to the particular facts upon which the charge of contributory negligence was based, but which left to the jury the existence of such facts and whether they were the proximate or contributing cause of the injury, have been approved by this court in several cases. See Blew v. Chicago, R.I. P. Ry. Co.,177 Okla. 553, 61 P.2d 258; Taylor v. Ray, 177 Okla. 18,56 P.2d 376; Wilson v. St. Louis S. F. Ry. Co., 141 Okla. 108,283 P. 999; Owens v. Turman Oil Co., 183 Okla. 182,80 P.2d 576.

Examination of cases where instructions involving a particular state of facts have been condemned discloses that such instructions either advised the jury that the acts of plaintiff amounted to contributory negligence (Southwestern Cotton Oil Co. v. Fuston, 173 Okla. 185, 47 P.2d 111), or that such acts, if in fact committed, precluded recovery, irrespective of proximate cause. Goodrich v. City of Tulsa, 102 Okla. 90, 227 P. 91; Mascho v. Hines, 91 Okla. 295, 217 P. 856. The requested instruction in the instant case did not offend in either respect. It simply and properly set before the jury defendants' theory of the case, which they were entitled to have presented to the jury. Forrester v. Jones, 148 Okla. 88, 297 P. 810; Clanton v. Chrisman, 174 Okla. 425, 51 P.2d 748; Menten v. Richards,54 Okla. 418, 153 P. 1177. The refusal of the trial court to give the requested instruction, or one which defined the duties of plaintiff under the law prohibiting the driving of an automobile while under the influence of intoxicating liquor, and that he could not recover if they found that he had violated such law, and that such violation proximately contributed to his injuries, was error. The trial court could not disregard the theory of defense relied upon by defendants. The court instructed on the issue of contributory negligence in driving on the wrong side of the road and at an excessive rate of speed, and the court also gave general instructions on contributory negligence. We do not believe the failure to define drunken driving and to give an instruction on drunken driving was rendered harmless by the giving of the general instructions on contributory negligence and those on the other specific acts of contributory negligence alleged in the answer. The act of driving a car upon the public highways while intoxicated is made a crime because such a driver is ordinarily not in possession of his faculties, does not have control of his automobile, is a dangerous driver, and a menace to other persons on the highways. It is a more general act of negligence than the other two, and tends to produce the two specific acts charged. Proof of it tends to corroborate the evidence as to the other two. It was as necessary to instruct on the general act as on the specific acts, on proper request.

2. While the case must be reversed because of the error of the trial court above discussed, another contention made by defendants will be disposed of to prevent a recurrence of the error at another trial. Defendants offered to show that a statement taken from a witness by an agent of plaintiff had been falsified, and as falsified was put in evidence at a former trial of this case, and that plaintiff knew of its falsity. If the agency of the man Robinson, who defendants claim procured and falsified the statement, and the knowledge and acquiescence of plaintiff that such had been done, can be established by defendants, we think the changed statement is admissible as showing an attempt on the part of plaintiff to fabricate evidence to strengthen his case. It amounts to an admission by plaintiff that his case is weak. Schaff v. Coyle,121 Okla. 228, 249 P. 947; Longuy v. La Societe Francaise,52 Cal.App. 370, 198 P. 1011; Jones on Evidence (2d Ed.) 83 et seq.; 22 C. J. 110; 20 Am. Jur. 192. The objection to this offer of defendants, in which plaintiff's counsel stated that plaintiff had no knowledge that the statement had been changed when it was put in evidence at the former trial, was by the trial court sustained. The trial court should permit defendants to introduce their proof, if they have any, of Robinson's agency and plaintiff's knowledge that the statement had been falsified when offered in the previous trial. If their evidence is sufficient to show these facts, the statements are admissible under the above authorities.

In view of the fact that the case must be retried, it is unnecessary to discuss other errors urged by defendants, which may not occur on another trial.

Reversed for a new trial.

WELCH, C. J., CORN, V. C. J., and RILEY, BAYLESS, and DAVISON, JJ., concur. ARNOLD, J., concurs in conclusion and dissents to syllabus pars. Nos. 2 and 3. OSBORN and GIBSON, JJ., dissent.