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FOCHT v. RABADA (06/12/70)

decided: June 12, 1970.

FOCHT, APPELLANT,
v.
RABADA



Appeal from judgment of Court of Common Pleas of Carbon County, Jan. T., 1966, No. 84, in case of Russell G. Focht v. Alex Rabada.

COUNSEL

John M. Yarema, with him Martin H. Philip, and Water H. Katherman, for appellant.

Joseph H. Foster, with him William H. Bayer, Allan H. Starr, and White and Williams, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Montgomery, J., dissents.

Author: Hoffman

[ 217 Pa. Super. Page 35]

The question in this case is whether, in certain circumstances, punitive damages may be imposed on a driver who, while intoxicated, operates an automobile causing injury to another.

[ 217 Pa. Super. Page 36]

Plaintiff was standing in front of his automobile when it was struck in the rear by defendant's automobile. The impact knocked plaintiff thirty feet. Defendant's automobile then continued on and struck another vehicle. Prior to the accident, defendant had been parked in front of a club on the opposite side of the street at a distance of 140 feet from plaintiff.

Defendant admitted liability. Plaintiff's counsel then made four offers of proof seeking to establish, (a) that defendant was so intoxicated that he did not know whether his motor was running; (b) that, in fact, defendant released the brake and permitted his automobile to drift, without lights or motor running, down and across the street and into plaintiff's automobile; (c) that defendant was incoherent; and (d) that defendant was uncooperative, refused to give his name and attempted to run away from the scene of the accident. All of this evidence was offered as a predicate to plaintiff's request that the question of punitive damages be submitted to the jury.

The lower court ruled that since liability was admitted, a verdict was to be directed for the plaintiff, and the amount of compensatory damages to be determined by the jury. In addition, the court ruled that evidence of intoxication would not be admitted as it could not support an award for punitive damages. Plaintiff filed a motion for new trial limited solely to the question of punitive damages, which was dismissed by the lower court. Judgment was entered for the plaintiff in the amount of the compensatory damages awarded, and plaintiff brought this appeal.

Several jurisdictions have held that evidence of intoxication does not support an award for punitive damages. For example, in Baker v. Marcus, 201 Va. 905, 114 S.E. 2d 617 (1960), the Supreme Court of Virginia held that punitive damages may not be awarded in the absence of proof of " purposeful carelessness, deliberate inattention to known danger, or any intended violation

[ 217 Pa. Super. Page 37]

    or disregard of the rights of others on the highway". (emphasis added) See also Giddings v. Zellan, 160 F. 2d 585 (D.C. Cir. 1947); Davis v. Gordon, 183 Md. 129, 36 A.2d 699 (1944); Gombos v. Ashe, 158 Cal. App. 2d 517, 322 P. 2d 933 (1958); Ruther v. Tyra, 207 Okla. 112, 247 P. 2d 964 (1952); Sears Roebuck & Co. v. Jones, 303 S.W. 2d 432 (Texas 1957). The courts in these jurisdictions have indicated that while driving an automobile while under the influence of intoxicating liquors may be evidence of negligence, ...


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