Smith v. Baker

SPENCE, J.

Plaintiffs sued to recover damages resulting from the death of their daughter while riding as the guest of defendants. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiffs in the sum of $5,000, defendants have appealed.

It was charged in the complaint that the death of the daughter was proximately caused by the intoxication of defendant Beverly Baker who was driving the automobile. Defendants denied the allegations of the complaint and affirmatively alleged that plaintiffs were guilty of contributory negligence. The trial court found that the above-mentioned allegations of plaintiffs’ complaint were true. It further found that the only liquor consumed by defendant Beverly Baker was served to him by plaintiff John F. Smith but that said plaintiff had no knowledge of the intoxication of

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defendant Beverly Baker. It further found that there was no negligence on the part of plaintiffs, or either of them, in permitting their daughter to ride in the automobile driven by said defendant.

Appellants contend that the evidence is insufficient to sustain the finding that appellant Beverly Baker was intoxicated and the finding that the death was proximately caused by such intoxication. They further contend that “the fact that John F. Smith served Beverly Baker with the only alcoholic liquor consumed by him on the day of the accident”, bars any recovery by plaintiffs. These contentions of appellants make it necessary to summarize the evidence presented on the trial.

Appellants planned to drive their automobile from their home in Gilroy to Morgan Hill and then return. Before leaving, the fiance of the respondents’ daughter asked appellants to bring respondents’ daughter to Gilroy upon their return. Appellants agreed to do so. Respondents were then living separate and apart from one another. Appellants called at the place of respondent John F. Smith, near Morgan Hill, for the purpose of collecting some money which said respondent owed to appellant Beverly Baker. They remained there for about twenty minutes during which time respondent John F. Smith served appellant Beverly Baker with two glasses of port wine. Appellants told Mr. Smith that they were going to take his daughter to Gilroy with them. Appellants left and went to the Lopez place a few miles distant to find respondents’ daughter. There they met respondent Dolly L. Smith and her daughter and remained only a very short time when they started on the return trip. The automobile was a Ford roadster and the top was down. Appellants were riding in the main seat while respondents’ daughter and a relative of appellants were riding in the rumble seat. A large police dog was riding on the top between the main seat and the rumble seat. Appellant Beverly Baker drove the car south on the highway through Morgan Hill and the accident occurred about half a mile north of San Martin.