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Feken v. National Ben Franklin Insurance Co.

June 21, 1973

FEKEN, APPELLANT,
v.
NATIONAL BEN FRANKLIN INSURANCE CO., RESPONDENT



Appeal from Circuit Court, Multnomah County. David Sandeberg, Judge Pro Tempore.

Francis F. Yunker, Portland, argued the cause for appellant. With him on the briefs was Darrell E. Bewley, Portland.

Cleveland C. Cory, Portland, argued the cause for respondents. With him on the brief was Clarence R. Wicks, Portland.

Tongue, Justice. O'Connell, Chief Justice, and Denecke, Holman, Howell and Bryson, Justices.

Tongue

This is a wrongful death action brought by an insured, as administrator, to recover damages for the death of his minor son under the uninsured motorist provisions of an insurance policy. At the time of the accident the son was a guest passenger riding in an automobile owned and operated by another minor, Edward A. Hennes, an uninsured motorist.

The case was tried to the court, sitting without a jury. The court entered general findings of fact against plaintiff and in favor of defendant. Plaintiff appeals from the resulting judgment. We affirm.

Plaintiff's son and Edward Hennes went together to a "keg party." There was evidence sufficient to support a finding that both bcame intoxicated. On the way home, with Edward Hennes driving, his car ran off the road and into a power pole, killing plaintiff's son. After the accident Edward Hennes said that "he was too drunk to know if he was driving or not."

Plaintiff contends that there was clear evidence that Edward Hennes was driving while intoxicated, so as to impose liability to a guest passenger, and that there was no substantial evidence to support a finding that decedent was contributorily negligent in riding with Edward Hennes when he knew or should have known of Hennes' condition, as alleged by defendant as an affirmative defense.

In view of the general findings by the trial court against plaintiff and in favor of defendant we are required to affirm the judgment of the trial court if

there was any substantial evidence to support such findings. Gordon Creek Tree Farms v. Layne et al, 230 Or 204, 217-18, 358 P2d 1062, 368 P2d 737 (1962).

In Zumwalt v. Lindland, 239 Or 26, 37, 396 P2d 205 (1964), under somewhat similar facts, and despite the absence of any contention that defendant was intoxicated, as in this case, we said that:

"* * * a jury could have considered from the youthfulness of the parties and from the manner in which they had been spending their time immediately prior to the accident that the defendant's ability to operate his vehicle safely had become impaired and that a reasonable person in the plaintiff's position should have ...


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