
    White, Appellant, v. Harvey, Admr.; Whitner, Appellee.
    (No. 35920
    Decided January 20, 1960.)
    
      
      Mr. John G. Bust, for appellant.
    
      Messrs. Bitter, Boesel, Holden & Smith, for appellee.
   Per Curiam.

Driving while intoxicated will not usually be sufficient in itself to justify submission to the jury of the question whether such driving amounted to wanton or willful misconduct. See O'Rourke, Admx., v. Gunsley, 154 Ohio St., 375, 96 N. E. (2d), 1.

However, the petition in the instant case alleges:

(1) That defendant Whitner knew

(a) that vehicles were often parked on the paved portion of the part of the road ahead of him,

(b) that he was so intoxicated that his ability to react to any situation of danger ahead was impaired and he could not maintain a lookout ahead, and

(c) that to drive, without maintaining a lookout ahead and while so intoxicated, would in all probability result in serious injury to the plaintiff;

(2) that, notwithstanding such knowledge, defendant Whitner

(a) drove at 40 miles per hour at night,

(b) did not maintain a lookout ahead, and

(c) collided with a truck parked on the paved portion of the road so as to cause injuries to plaintiff; and

(3) that defendant Whitner was so intoxicated that he was indifferent to the consequences of his acts and ready and willing to take chances even at the risk of danger to himself.

In our opinion, this alleged conduct of defendant Whitner was “such * * * as manifests a disposition to perversity.” Unlike in Helleren, Admx., v. Dixon, 152 Ohio St., 40, 86 N. E. (2d), 777, it is not merely alleged that defendant Whitner took a chance on nothing happening. It is alleged that he knew that vehicles were often parked on the paved portion of the highway ahead of him and yet he drove at a fairly good speed at night although he knew he could not, because of his intoxicated condition, keep any lookout ahead. It is further specifically alleged that he was “indifferent to the consequences of his acts * * * and * * * ready and willing to take chances” even at the risk of danger to himself. Cf. Lombardo v. De Shance, a Minor, 167 Ohio St., 431, 433, note, 149 N. E. (2d), 914. Likewise, the petition specifically alleges that defendant Whitner knew that his conduct would “in all common probability result in injury” to the plaintiff. See Prosser on Torts (2 Ed.), 150. Thus, the petition alleges conduct that is such as to come within the definition of wanton misconduct set forth in Helleren v. Dixon, supra. (152 Ohio St., 40), and Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 200 N. E., 843, 119 A. L. R., 646.

It may be that plaintiff will be unable to produce evidence that will support a reasonable inference of defendant Whitner’s wanton misconduct, or even that evidence as to the reason for his driving in such condition and at such speed at this time may be such as to prevent such an inference. However, we are confronted with the question whether plaintiff alleges such wanton misconduct in her petition. In deciding that question, the allegations of the petition must be liberally construed in favor of the plaintiff, and the plaintiff must be given the benefit of whatever can, by fair and reasonable intendment, be implied from those allegations. Glass v. McCullough Transfer Co., 159 Ohio St., 505, 112 N. E. (2d), 823.

Hence, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Common Pleas Court for further proceedings.

Judgment reversed.

Zimmerman, Taet, Bell and Peck, JJ., concur.

Weygandt, C. J., Matthias and Herbert, JJ., dissent.

Bell, J.,

concurring. I concur in the foregoing per curiam opinion with some reluctance. It is not difficult to envision, as a result of the sustention of this petition (even a qualified sustention), a flood of such petitions alleging drunkenness in an effort to circumvent the strict requirement of pleading wanton or wilful misconduct in guest-statute situations.

It has long been the rule that intoxication, even voluntarily induced, does not in itself constitute negligence. Nor is a premium put on drunkenness. Rather the intoxicated person is held to the same duty and responsibility as the sober one. And well he should be. The dismal list of sorrows and ills which flow from drunkenness, particularly on today’s superhighways crowded with racing automobiles powered with high octane gasoline, is sad enough without adding new terrors by judicial construction.

I am of the opinion that the allegation of intoxication, no matter to what extent the intoxication is claimed to have progressed, does not of itself constitute an allegation of either wilful or wanton misconduct.

There are, however, in this petition sufficient allegations of matters claimed to be within the knowledge of defendant Whitner, e. g., the frequency of parked vehicles on the paved portion of the road and his propensity to lose consciousness and be unable to maintain a lookout, to enable us to give to plaintiff the benefit of whatever can reasonably and fairly be implied from these allegations.

In so pleading, however, the plaintiff may well have placed herself in an untenable position so far as her proof is concerned. If, as plaintiff alleges, Whitner was so intoxicated as to cause him temporarily to lose consciousness and be unable to keep a lookout ahead, and if he knew he could not, because of his intoxicated condition, keep any lookout ahead, the plaintiff may meet considerable difficulty in proving Whitner could form “an intention or purpose to do wrong” or intentionally deviate “from clear duty or from a definite rule of conduct.” Tighe, a Minor, v. Diamond, 149 Ohio St., 520, 80 N. E. (2d), 122. Similar difficulty may be encountered in proving Whitner could “be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury.” Helleren, Admx., v. Dixon, 152 Ohio St., 40, 86 N. E. (2d), 777.

It might also be pointed out, in connection with this allegation that Whitner was aware that his intoxication caused him temporarily to lose consciousness, that if it should be shown that the accident was the result of his actually losing of consciousness such loss could hardly be considered a wilful or wanton act. But giving the allegation its most liberal construction, it may be construed to allege that Whitner had at one time lost consciousness, and knew he had, but had regained it prior to the accident.

Weygandt, C. J.,

dissents for the reason that both the ma-

jority and concurring opinions significantly fail to explain just how it is possible for a defendant to first lose his reason by becoming intoxicated and then to subsequently exercise his lost reason by indulging in wilful misconduct.

Matthias and Herbert, JJ., concur in the- foregoing dissenting opinion.  