delivered the opinion of the Commission of Appeals, Section B.
The Court of Civil Appeals for the Second Supreme Judicial District has certified five questions to this court in a suit for damages by appellees, Mrs. Beulah Gardner and her husband, George Gardner, against appellant Winifield Scott, on account of personal injuries suffered by Mrsi Gardner when she and her husband, as guests of appellant, were riding in appellant’s automobile driven by Mr. Gardner. Recovery is sought under the provisions of the guest statute. (Ch. 225, Acts Reg. Sess. 42nd Leg., 1931; Art. 6701b, Vernon’s Ann. Tex. Civ. Stat.) which authorizes recovery of damages by a guest against the owner or operator of an automobile for injuries, death or loss, in case of accident, when the accident is intentional on the part of the owner or operator or is caused by the owner’s or operator’s “heedlessness or his reckless disregard of the rights of others.” Appellees’ petition contains the following allegations a;s¡ to acts and conduct of appellant Scott that caused the accident:
“But in utter disregard of the warning and admonishing of the plaintiff George Gardner and without any provocation on the part of the plaintiff, defendant negligently and in heedless and reckless disregard of the rights of plaintiffs and without respect to their safety, with the utmost gross negligence and purposefully and willfully and intentionally and while drinking and intoxicated, defendant Winifield Scott began kicking in the direction of plaintiffs and kicking the steering wheel of the automobile in which the parties were riding, kicking the hands of plaintiff George Gardner on the steering wheel and by said acts caused him t» lose control thereby and causing the automobile to swerve into the ditch on the side of the road and turn over. That plaintiff George Gardner did every*631 thing within his power to prevent the accident but that the acts of defendant intentionally, willfully and grossly negligent and done in heedless and reckless disregard of the rights of plaintiff was of such nature that control of the car was. entirely taken away from plaintiff, George Gardner, and caused the car thereby to turn over. As a result of said acts and of the turning over of said automobile and the intentional and grossly negligent conduct of the defendant as hereinabove described, serious injuries were proximately caused to the plaintiff Beulah Gardner.”
The first and third special issues submitted to the jury and the answers thereto are:
“Issue No. 1: Do you find from a preponderance of the evidence that immediately prior to the time the automobile turned over on the occasion in question that the defendant Winifield Scott kicked the steering wheel of said automobile? The answer was ‘Yes’.”
“Issue No. 3: Do you find from a preponderance of the evidence that the kicking of said steering wheel by the dеfendant Winifield Scott, in the event you have found that he did kick the same, constituted ‘heedless and reckless disregard of the rights of others,’ as that term is defined for you above, on the part of the defendant Winifield Scott? The answer was ‘Yes’.”
The first two. questions certified are:
“1. Does the petition, which alleges that the defendant Scott while intoxicated; ‘began kicking in the direction of' plaintiffs and kicking the steering wheel of the automobile in which the parties were riding, kicking the hands of the plaintiff George Gardner on the steering wheel and by said acts caused him to lose control thereby and causing the automobile to swerve into the ditch on the side of the road and turn over,’ charge more than one act causing the accident?
“2. Or, is our interpretation correct, wherein we hold that the meaning of the allegatiоns simply is to charge the defendant with kicking the steering wheel, thereby kicking the hands of the driver (Gardner) which were on the wheel and thereby causing Gardner to lose control of the automobile, resulting in the wreck?”
The Court of Civil Appeals in its tentative opinion accompanying the certificate expressed the conclusion that special issue
“The so callеd acts are pleaded as one which bring about one condition and the consequent result. Namely, a kicking in the direction of the plaintiffs and kicking the steering wheel, with the result that the defendant kicked the hands of the driver and caused him to lose control of the car.”
1, 2 In our opinion the petition is fairly and reasonably construed as alleging more than one act causing the accident. The allegations are in substance that the defendant kicked in the direction of plaintiffs and kicked the steering wheel of the automobile and kicked the hands of Mr. Gardner on the steering wheel and by said acts caused him to lose control of the automobile. The petition alleges that. Mr. Gardner was caused to lose control “by said acts,” meaning the acts of appellant in kicking in the direction of plaintiffs, in kicking the steering wheel and in kicking Mr. Gаrdner’s hands. The pleading might have been amended to show more distinctly that more acts than one were alleged as causing the accident, but no special exception was directed to that portion of the petition referred to in the first certified question. In the absence of special exception the petition will be liberally construed in the pleader’s favor аnd to- support the judgment. Schuster v. Frendfenthal,
3 The certificate ¡states that appellees pleaded that appellant Scott “was in truth and in fact intoxicated and drunk,” that both appellees testified to appellant’s taking several drinks and then sets out portions of appellеes’ testimony. The substance of Mrs. Gardner’s testimony, quoted in the certificate is : Mr. Scott was mumbling as though he was driving an airplane and he would ¡say “Give her the gun, Jazz.” He called Mr. Gardner “Jazz.” She cannot explain drunkards except that she knows that they mumble sometimes and do not realize what
The substance of Mr. Gardner’s testimony with respect to Scott’s condition, quoted in the certificate, is: Appellant Scott was staggering when he got into the car. He kept remonstrating with Mrs. Gardner and what he said “did not sound like he was in his right mind.” He was not talking with any sense. He was not “at himself.” In his opinion appellant was drunk at the time. A “drunk” meаns to him, the witness, “a person that does not know what they are doing,” and that is the condition he thinks appellant was in when he left the house and until the accident.
The certificate sets out testimony of Mr. Gardner about the acts of Scott immediately preceding the accident. It is that after the car had been driven about 15 miles and a few minutes before the accident appellant rеached over, pushed the car out of gear and “gave a whoop and hollered, ‘Give her the gun, Jazz’.” When they had gone a little farther appellant began to choke and curse Mrs. Gardner. They went a few more yards when appellant put his foot over into the steering wheel and held it there until the car turned over.
The third question propounded in the certificate is: “Does the undisputed testimony of the two plaintiff’s touching Scott’s intoxication establish the fact that Scott was drunk on the occasion in question, as being an undisputed fact, there being no suspicious circumstances attendant upon the giving of such testimony by the plaintiffs, .and they being corroborated by their testimony detailing the acts and conduct of Scott, at the time he is charged with being drunk?” Answers to this and the other questiоns must be based upon the facts set out in the certificate and not upon a consideration of the evidence contained in the statement of facts. Goldstein v. Union National Bank,
Undoubtedly the undisputed testimony of appellees quoted in the certificate would have established as a matter of law the fact that appellаnt was under the influence of intoxicating liquor, had the testimony come from disinterested witnesses.
Moreover, because of the general rule that requires the submission to the jury of the credibility of the testimony of .an interested witness, it cannot be said that the undisputed testimony of appellees set out in the certificate establishes as a matter of law the fact that appellant was drunk. See Gulf, C. & S. F. Ry. Co. v. Davis and Simmonds v. St. Louis, B. & M. Ry. Co., supra.
Our answer to the third certified question, the reasons for and the materiality of which appear more fully hereinafter, is: The undisputed testimony of the two рlaintiffs does not establish the fact that appellant was drunk “as being an undisputed fact,” or as a matter of law, the question whether appellant was drunk and the extent or degree of his drunkenness being for the jury’s determination and consideration in answering the ultimate fact issue submitted to it in Special Issue No. 3 relating to heedless and reckless disregard.
4 The fourth certified question, which has reference to the third special issue, is: “Does such undisputed testimony show that Scott, as a matter of law, could not be guilty of an act that was the result of a conscious indifference to the rights and welfare of the plaintiffs who were affected by it?”
Voluntary intoxication is not a defense to crime, Article 36, Penal Cоde. Even when specific intent must be established for conviction, mere intoxication is never a defense, neither as to intent nor as to guilt. Ferdandez v. State, 135 Texas Cr. 12,
In a suit for damages caused by negligence neither the plaintiff nor the defendant is relieved from the consequences of his negligent act or'omission by the fact that he was drunk at the time the injury was done. Paris & G. N. R. R. Co. v. Robinson,
Appellant, citing Kaplan v. Kaplan,
The argument is answered by the fact already noted that the evidence given in the certificate does not conclusively prove that appellant was intoxicated to the degree of unconsсiousness or that he was incapable of conscious conduct. It is also to be observed that liability for heedless and reckless disregard of the rights of others under the guest statute, like liability for negligence ordinary or gross, arises out of the act or omisision of the defendant and not out of his mental condition. The inquiry is whether the conduct of the defendant was of such character, or evidenced such entire want of care, as to raise the belief that the act complained of was the result of a conscious . indifference to the rights and welfare of the person affected by it.
The Iowa guest statute construed in Frazer v. Brannigan, 228 la. 572,
“The test is not, as suggested in the brief of appellant, the good intentions or mental attitude of the driver but rather*637 his acts and omissions * * *. ‘It is the actions and conduct, and not the mental attitude of the actor that measure the degree of care and determine whether or not one is proceeding without heed of, or concern for, a consequences, and with a heedless disregard for, or indifference to, the rights of others’.”
See also Bushnell v. Bushnell,
Negligence implies ability to perceive and power of volition. Bushnell v. Bushnell, supra; Herrick v. Washington Water Power Co.,
Similarly, intoxication which has not' reached the state of unconsciousness, does not and should not excuse heedless and reсkless conduct, but it is an evidentiary fact that may be considered by the jury, together with other circumstances, as tending to prove such conduct. This being true it follows, in our opinion, on the same principle as that applicable in cases or ordinary negligence, that evidence that the owner or operator of an automobile was intoxicated, but not unconscious, at the time of the accident does not prove, or certainly does not conclusively prove, that he was incapable of heedless and reckless disregard, or of conscious indifference, within the meaning of the guest statute.
The Supreme Court of Wisconsin expressed the opinion in Tomasik v. Ranferman,
We hold that drunkenness, which has not made the owner or operator of an automobile unconscious or entirely helрless, does not absolve him from liability for injury to his; guest when the accident and injury are caused by the owner’s or operator’s acts or conduct which, if he were sober, would evince a heedless and reckless disregard for the rights of others,” this conclusion answers the fourth certified question in the negative.
5 The answer to the fifth certified question is indicated by what has been said above in discussing the third and fourth questions and is supported by the authorities which have been cited. The question is: “Or, was it necessary that the matter of Scott’s intoxication be submitted to the jury, together with the question of whether or not, at the time, he was in E.uch a mental state that his act evidenced a conscious indifference to the rights and welfare of the plaintiffs?” Our answer is: The question of appellant’s intoxication was nоt an ultimate fact issue and it was not necessary that it be submitted to the jury as an issue. The trial court’s action is not so submitting it was correct. Appellant’s intoxication was a fact to be considered by the jury, together with other circumstances, in answering the third special issue in the trial court’s charge, which in our opinion sufficiently and correctly submitted the question as to appellant’s heedless and reckless disregard, or conscious indifference.
Opinion adopted by the Supreme Court November 26, 1941.