Earley v. Wolf

PULLEN, P. J.

Plaintiff brought this action against defendant to recover damages for personal injuries sustained by her in an automobile accident, which occurred on the night of April 1,1933, on the highway bordering the northern shore line of Clear Lake.

Plaintiff was riding as a guest of defendant when the accident occurred. It is alleged in her complaint, and the trial court found, that the accident and the resulting injuries to her were proximately caused by the intoxication of defendant. By reason thereof a judgment was accordingly rendered in favor of plaintiff, awarding to her damages in the sum of $4,500.

[226]

Appellant bases Ms appeal upon two grounds. First, that the evidence is insufficient to support the finding of the trial court that plaintiff did not know that the defendant was intoxicated, and secondly, that the damages awarded are excessive.

We need not here quote the statement of the rule so clearly expressed by the court speaking through Mr. Justice Sloss in

Bancroft-Whitney Co.

v.

McHugh,

166 Cal. 140 [134 Pac. 1157] ; but it is sufficient to say that an appellate court in examining the sufficiency of the evidence to support a questioned finding must accept as true all evidence, and inferences reasonably based thereon, that tends to establish the correctness of the finding and resolve all conflicts in support thereof.

With that in mind we find the following facts in the record. Plaintiff met the defendant at the Ferry in San Francisco and was taken by him in his car to the cabin or lodge of a mutual friend on the shores of Clear Lake in Lake County, where the son of plaintiff, a guest, was awaiting them. During that ride defendant drove in a careful and prudent manner. They arrived at the cabin about 7:30 o’clock in the evening. Upon her arrival plaintiff found the kitchen in great disorder and she immediately began to clean it up and prepare the evening meal.. Supper was served about 8:30 or 9 o ’clock, but on account of the small dining room there was not room for all of those present, about nine in number, to be seated at the table at the same time so plaintiff waited until the others were through and had her supper by herself. While plaintiff was cleaning the kitchen and preparing the supper the rest of the party were in another room singing and playing the piano. Drinks, consisting of whiskey highballs, were mixed and served in the living room,, but plaintiff testified positively that she did not see appellant drink either before or after supper nor did she observe anything in defendant’s acts or conduct that would indicate to her that he was under the influence of intoxicating liquor. Defendant admits having had three or four whiskey highballs before supper and two or three similar drinks after supper. The kitchen did not open directly into the living room and it was necessary to pass through a small room to get from the kitchen to the living room; the connecting doors, however, remained open at all times. Before supper plaintiff was in