Donald W. ALLEN
v.
Carol J. BLANKS.
Supreme Court of Mississippi.
*64 Gene Brown, Meridian, for appellant.
Eppes & Shannon, Walter W. Eppes, Jr., Meridian, for appellee.
Before PATTERSON, C.J., SUGG and BROOM, JJ.
PATTERSON, Chief Justice, for the Court:
Donald Allen filed a declaration in the Circuit Court of Lauderdale County alleging that Carol Blanks negligently collided with his motorcycle at the intersection of Bounds and Pine Springs Roads in Meridian, injuring him. From a verdict for the defendant Allen appeals, contending the trial court erred in granting and refusing various jury instructions relating to intoxication, standard of care, and other issues. We reverse.
On June 17, 1978, at about 7:00 p.m., Allen, with a passenger, his girl friend, drove a 1972 Honda motorcycle in an easterly direction on Bounds Road in Meridian. Rick Hunnicutt, accompanied by his wife, drove his smaller Honda motorcycle alongside Allen at approximately the same rate of speed. As they approached Pine Springs Road intersection, they faced a stop sign as well as a flashing red light. Both motorcycle drivers responded to the warnings and stopped their vehicles. Hunnicutt then crossed the intersection and several seconds later, when Allen's motorcycle was completely within the intersection, Blanks' automobile struck it broadside.
A flashing yellow caution light and warning signs faced Blanks as she approached the intersection from the north on Pine Springs Road. At the time of the collision the weather was clear, the road dry, and visibility good. In the passenger area of Blanks' car an officer investigating the accident discovered a gallon jug of wine which was at least half empty.
Allen testified that he heard neither horn nor squeal of tires before the impact. His passenger, now his wife, slapped him on the shoulder and exclaimed "watch it!" and instantaneously the car struck him, knocking his 650-pound motorcycle about 100 feet and catapulting him about 25 feet from the point of impact. Other witnesses estimated the impact propelled the motorcycle approximately 30 feet and their testimony also differed as to the speed of Blanks' automobile.
Observing the roadway after the accident, Hunnicutt detected no visible skid marks. To the contrary, a passerby, James Hollis, who arrived shortly after the accident, testified he saw 50 feet of faint skid marks behind Blanks' car, which suggested Blanks observed the hazard, attempted to stop and swerved into the left lane of traffic to avoid the motorcycle.
Billie Hunnicutt testified that Blanks wore a one-piece bathing suit, no shoes and no glasses, and smelled of alcohol immediately after the accident. Blanks testified in rebuttal that while she was driving, she wore, in addition to the bathing suit, "flip flops" on her feet, wore contact lenses to correct her nearsightedness, and had drunk wine, explaining, "I had at 1:00 o'clock, between 1:00 and 2:00 I had two cups, it was approximately eight ounces. They were full of ice. I would say I had four *65 ounces out of each cup; and, between 4:00 and 5:00, I had one more glass." Nevertheless, the odor of alcohol was such that Rick Hunnicutt, his wife Billie, and police officer Taylor, as well as Allen himself, noticed it. Taylor required Blanks to take a breath analyzer test, the results of which were excluded from evidence as required by Mississippi Code Annotated section 63-11-43 (1972).
In sum, the evidence conflicted with respect to the position of the Allen motorcycle at the time it was struck by Blanks' automobile. The evidence of Allen's witnesses was that Allen, after stopping at the intersection, proceeded across it at approximately the same time as Hunnicutt, but stalled within Blanks' lane of travel and in this position suffered the impact of the car driven by Blanks, who was speeding, drunk, shoeless, and without lenses to correct her nearsightedness. Blanks' evidence was that Allen stalled at the stop sign and in a foolish effort to catch up with Hunnicutt sped into the intersection in an attempt to "beat the traffic." According to Allen, speed, drunkenness and inattention prevented Blanks from avoiding the accident. According to Blanks, Allen's inexcusable failure to yield the right-of-way constituted the sole cause of the accident, unavoidable notwithstanding her sobriety, braking, and driving into the opposite lane of travel to avoid the collision.
Without contradiction, Allen was severely injured in that his left leg was broken, eventually requiring amputation of most of his left foot through surgical procedures necessitating hospitalization for about three months.
By his first assignment of error, Allen attacks the refusal of the trial court to instruct the jury peremptorily on the issue of liability. In our opinion, this assignment lacks merit. Taken as a whole, the evidence, including reasonable inferences arising from it, when viewed in the light most favorable to Blanks, raises credibility issues appropriate for jury resolution upon proper instructions. See Paymaster Oil Mill Co. v. Mitchell,
Allen next attacks the refusal of the trial court to grant proffered instruction P-3, a standard of care instruction including the language, "the defendant had no lawful right to go forward ... under the assumption that it would be open and clear." While language of this sort appears in the cases, see Tippit v. Hunter,
By his third assignment of error, Allen attacks the trial court's refusal to grant instruction P-4, which states in part, "The driver of a motor vehicle has a lawful duty to decrease his speed upon approaching an intersection." The statute on the duty of care of a driver approaching a caution light, Mississippi Code Annotated section 63-3-311(2) (1972), states the driver "may proceed ... only with caution." P-4 is defective, because caution is a relative concept not necessarily entailing decrease in speed: The current speed may already be a cautious speed. See Richardson v. Adams,
Allen next challenges the refusal to grant instruction P-5. In essence it states that *66 Blanks must be found negligent per se if she drove under the influence of alcohol. The instruction adds that a verdict for the plaintiff would follow from such finding of negligence if Blanks' intoxication operated as a proximate cause of the accident. Blanks argues the instruction was properly refused, because the evidence raised only a speculative inference of driving under the influence and of proximate causation. She relies upon five cases: Alston v. Forsythe,
While it is true that the court in Alston declined to reverse where an intoxication instruction had not been given despite evidence indicating that "the defendant smelled slightly of beer," the court based its decision on the fact that the proffered instruction "ignored the matter of any causal relation between the alleged driving while under the influence of intoxicating liquor and the happening of the accident."
In Singleton the following language appears:
In determining whether or not a driver was under the influence of liquor in any degree, the jury should be left free to form their own judgment from the evidence... . At the trial below, where there was testimony that there was a very slight odor of alcohol on the driver's breath, but he did not seem to be intoxicated, it was the province of the jury to determine whether he was actually under the influence of intoxicating liquor in any degree, however slight, and if he was, whether the intoxication contributed to the accident.
(72 A.2d at 707 )
In a later case, Walker v. Hall,
Appellant overlooks the significance of Trooper Myrick's testimony that he smelled alcohol on Hall's breath yet concluded that "I didn't feel that he had enough to be charged with it... ." A similar issue was before the Court of Appeals in Alston v. Forsythe,226 Md. 121 ,172 A.2d 474 (1961). In Alston, the court affirmed a judgment for the defendant despite the trial court's actions in not instructing the jury concerning the provisions of the predecessor section of Art. 66 1/2, § 11-902, under circumstances where the defendant had admitted to drinking two beers prior to the accident. The investigating officer in Alston, as in the instant case, noted the defendant's drinking yet failed to charge him with a violation.
(369 A.2d at 114 )
In this case, in contrast, the investigating police officer who administered a breath test to Blanks did not testify as to whether any criminal proceedings had been initiated against Blanks as the result of the accident. Mississippi Code Annotated section 63-11-43 (1972) renders inadmissible in a civil case the results of any chemical test to determine the level of blood alcohol. Unlike Alston, we do not have in the record an affirmative statement by a police officer that there was no probable cause for believing the driver to have been under the influence. On the contrary, the officer in this case, finding a gallon jug of wine at least half empty in the car and smelling alcohol on Blanks' breath, administered a breath analyzer test to verify his suspicion. Under these circumstances, Alston loses persuasiveness in Blanks' argument for affirmance. Bohnsack, supra, falls within the same category for the same reasons. We note also that in Provins v. Bevis,
*67 Blanks next relies upon Parton v. Weilnau,
Paragraph 1 of the Parton syllabus states the law of the case as follows: "Where upon the evidence reasonable minds cannot conclude that an automobile driver was under the influence of alcohol at the time of the collision ... an issue as to whether such driver was negligent in driving under the influence of alcohol should be withdrawn from consideration by the jury."
Blanks next relies upon Fain, supra. In Fain the court stated that in the absence of evidence of any "perceptible effects of drinking" on the defendant's driving, the court below properly removed the issue of intoxication from consideration by the jury. Again, however, an officer's affirmative testimony that based on his observations at the scene of the accident the defendant was not under the influence of intoxicating liquor raises a distinguishing feature in the case which was not overcome by the defendant's admission that earlier in the afternoon of the accident he had had "three or four beers."
In this case, the issue is one of simple, not gross, negligence, and the threshold of sufficiency of the evidence to submit the question to the jury should therefore be lower. Also, the Oregon court's interest in Fain with the phrasing "perceptible effect" appears to us unsound. It is a fact capable of judicial notice that consumption of even small quantities of alcohol may significantly, albeit "imperceptibly," impair reaction time. Where split seconds are critical, even a very slight impairment of reaction time may spell the difference between accident or no accident, between proximately contributing negligence or the lack of it.
In considering Blanks' argument that the instruction on intoxication was properly refused, we note that the only consequence of giving the instruction is to call the jury's attention to the relevant evidence as to whether the driver was intoxicated and further as to whether the intoxication, if any, proximately contributed to the accident. An instruction of the kind offered by Allen does not, as Blanks suggests, bind the jury to a finding of negligence. It simply indicates the legal effect of findings of intoxication and proximate cause, leaving entirely to the jury the factual question of whether such intoxication and proximate cause appears from the evidence presented. See gen. Gandy v. State,
Four occurrence witnesses, including a police officer, stated that Blanks smelled of alcohol. The significance of the presence of a partially consumed gallon jug of wine in the car cannot be discounted. See Burkett v. Johnston,
In Freeze v. Taylor,
By his fifth assignment of error, Allen attacks the trial court's refusal of instruction P-11. P-11 charges the jury to disregard any evidence relating to Allen's failure to procure a valid driver's license.
The record reveals that Blanks' attorney wafted into the jury box an unwarranted innuendo concerning Allen's failure to procure a driver's license. Blanks' attorney first broached the subject on cross-examination of Allen:
Q. You have had a good bit of experience driving a motorcycle?
A. Yes, sir.
Q. Drive a car?
A. Yes, sir.
Q. Got your license with you?
A. No, sir.
Q. Got one?
BY MR. BROWN: I object to that line of questioning, your Honor. It has no relevance on the negligence.
BY THE COURT: Overruled; he's on cross-examination.
BY MR. EPPES: Son, you never have had a driver's license, have you?
BY MR. BROWN: Your Honor, I'm going to ask for a mistrial. That's as inadmissible as has ever been admitted in a court of law.
BY MR. EPPES: I'll withdraw it.
On redirect examination, Allen's attorney did nothing more than explore the matter of driving experience, which Blanks' attorney had opened on cross-examination. Then Blanks' attorney interjected, "Your Honor, I think the door is now open." The court responded, "Yes, sir."
The prejudicial one-liner on recross examination follows:
Q. Have you got a license now and did you have a license when this accident happened, to be operating any kind of motor vehicle? Yes or no.
A. No, sir.
BY MR. BROWN: Your Honor, I'm going to move for a mistrial.
BY THE COURT: Overruled.
Blanks' attorney then carefully watered the seed which he had planted first on cross-examination.
BY MR. EPPES: I'd like an answer from the witness as to whether or not on the occasion of this accident or before or since you have had a license to operate an automobile or motor vehicle in the state of Mississippi?
Q. No, sir.
BY MR. EPPES: That's all.
The probative value of this testimony on the issue of negligence is exceedingly slight, its prejudicial impact and tendency to mislead immeasurably great. The clear majority, and, we think, better-reasoned position, which we now adopt, holds evidence of this kind inadmissible for the purpose of proving lack of due care. See, e.g., Hawkins v. United States,
We reject Blanks' argument that Allen's attorney waived his previous objection by examining his client with respect to driving experience. Blanks' attorney first mentioned driving experience in connection with his examination of Allen concerning licensing. When Allen's attorney objected, the court declared, "overruled," erroneously *69 suggesting that evidence of this sort had some legal effect. From that point on, Allen's attorney attempted to mitigate the prejudicial effect. The trial judge then punished that attempt, the only route open to Allen's attorney to rehabilitate his client, by ruling that he had "opened the door" to further prejudicial questions on recross-examination.
As for Blanks' argument that the error was harmless, the sharp conflict in the testimony of the witnesses demonstrates the case is factually close on the liability issue, particularly in view of the application of comparative negligence. Under these circumstances, even slight prejudice must be assumed to have been outcome-determinative. See Bradley v. Holmes,
We conclude that Allen's motion for a new trial should have been sustained inasmuch as the trial court refused the instruction, P-11, proffered to alleviate the prejudicial effect of the improper evidence relating to Allen's failure to procure a driver's license.
Our disposition of the foregoing issues renders unnecessary any discussion of Allen's remaining assignments of error.
REVERSED AND REMANDED.
SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.