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Harrell v. Ames

April 2, 1973

HARRELL, RESPONDENT,
v.
AMES, APPELLANT



Appeal from Circuit Court, Curry County. James A. Norman, Judge.

Frank H. Hilton, Jr., Portland, argued the cause for appellant. With him on the brief were Hutchinson, Schwab, Burdick & Hilton, Portland, and Dwight L. Schwab, Portland.

Paul W. Haviland, Medford, argued the cause for respondent. With him on the brief were Haviland, deSchweinitz & Stark, and Allan B. deSchweinitz, Medford.

Tongue, Justice. McAllister, Denecke, Howell and Bryson, Justices. O'Connell, Chief Justice, specially concurring.

Tongue

This is an action for personal injuries sustained when plaintiff's car was hit head-on by a drunken driver. The primary issue on this appeal is whether a jury verdict for $25,000 in punitive damages was proper. Defendant does not deny liability for plaintiff's injuries and has already paid the jury verdict for $50,000 in general damages and $20,000 in special damages. We affirm.

This tragedy occurred on New Year's Eve, December 31, 1969, near Brookings, in Curry County. Defendant and her husband started early in preparations for that occasion. At about 5:00 or 5:30 p.m., according to her testimony, she met him after work at a tavern. They remained there about 30 minutes, during which she had two "tall V.O.s and water."

After going home for her husband to change clothes, they went on to a cocktail party. They remained there between 30 and 40 minutes, during which defendant had three more "tall V.O.s and water."

After leaving the cocktail party defendant's husband left her to "have a drink" with a friend of his. After some time defendant went to look for him. Not finding him, she returned to the same tavern. She

remained there "fifteen or twenty minutes," during which she had two more drinks. Thus, defendant admitted to a total of at least seven drinks during the evening and prior to 9:40 p.m., the approximate time of the accident.

Defendant then left the tavern, got in her automobile, and started to drive home. There was testimony that on the way, and just before the accident, she was driving at a speed of between 60 and 70 miles per hour, was "swerving back and forth, and she was on both sides of the road." Defendant, however, did not admit this. The "designated" speed in that area was 40 miles per hour.

Meanwhile, plaintiff was leaving the "Pizza Parlor" and had "just pulled out onto the highway" in his automobile and "got straightened up" when, according to his testimony, defendant's car "came across over on my side of the road and hit me head-on" at a speed of between 60 and 70 miles per hour. The state police officer, as well as an eye witness, also verified that the accident occurred on plaintiff's side of the highway. His car was "totalled."

Immediately after the accident defendant went in to the "Pizza Parlor" and had a cup of coffee. A state police officer then read her a "Miranda card," placed her under arrest, and took her to the Brookings police station. According to his testimony, she had a "smell of alcoholic beverage on her" and he asked her to "perform some routine tests." In one test, when asked to pick up a coin on the floor with both feet on the floor, she picked up the coin and then "fell over backwards."

Defendant was then taken from Brookings to Gold Beach, where she was given ...


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