We do not attach any importance to whether the allegations are contained in one count or set forth separately. Glascock v. Anderson, 198 Or. 499, 257 P.2d 617 (1953); Fossi v. George, 191 Or. 113, 228 P.2d 798 (1951); Willoughby v. Driscoll, 168 Or. 187, 120 P.2d 768, 121 P.2d 917 (1942). McIntosh v. Lawrance, 255 Or. 569, 469 P.2d 628 (1970); Stites v. Morgan, 229 Or. 116, 366 P.2d 324 (1961); Petersen v. Abrams and Leatham, 188 Or. 518, 216 P.2d 664 (1950).
Blanks argues the instruction was properly refused, because the evidence raised only a speculative inference of driving under the influence and of proximate causation. She relies upon five cases: Alston v. Forsythe, 226 Md. 121, 145, 172 A.2d 474 (1961); Parton v. Weilnau, 169 Ohio St. 145, 158 N.E.2d 719 (1959); Bohnsack v. Kirkham, 72 Wn.2d 183, 432 P.2d 554 (1967); Fain v. Hughes, 262 Or. 137, 497 P.2d 198 (1972); and Fossi v. George, 191 Or. 113, 228 P.2d 798 (1951). While it is true that the court in Alston declined to reverse where an intoxication instruction had not been given despite evidence indicating that "the defendant smelled slightly of beer," the court based its decision on the fact that the proffered instruction "ignored the matter of any causal relation between the alleged driving while under the influence of intoxicating liquor and the happening of the accident."
In one Oregon case it was held that it is error not to instruct on ordinary negligence. Fossi v. George, 191 Or. 113, 118, 228 P.2d 798 (1951): "An additional reason which impelled the trial court to grant a new trial was that, while it instructed the jury upon gross negligence, it failed to instruct it as to what constitutes ordinary negligence.
The only evidence regarding defendant's drinking of intoxicating liquor is defendant's statement at trial that, while doing some work around the house in the afternoon and before the accident, he had three or four beers; Officer Robinson's testimony that the defendant stated at the scene of the accident that he had three or four beers that afternoon; and Officer Robinson's testimony, based on his observations at the scene of the accident, that defendant was not under the influence of intoxicating liquor. We stated, in Fossi v. George, 191 Or. 113, 116, 228 P.2d 798 (1951): "* * * Evidence that defendant had been drinking intoxicating liquor, without proof that he had drunk enough to render him incapable of giving to his driving the care and attention of a reasonably prudent driver, would not have been sufficient to take the case to the jury on the intoxication specification.
We doubt a jury could determine whether a party was guilty of gross negligence without an understanding of the meaning of ordinary negligence. Fossi v. George, 228 P.2d 798 (Ore. 1951). But the purpose of the instruction must be made clear so that the jury will not be confused as to the standard of care applicable to the defendant.
[2] The word "intoxication" as used in the host-guest statute is a broad and relative term. It embraces and includes the varying degrees of insobriety from "under the influence of intoxicants" to "dead drunk." It contemplates a situation where the host driver is affected by the intake of intoxicants to an extent which prevents him or her from exercising the care and caution in driving an automobile which a sober and prudent person would exercise under the same circumstances. Willoughby v. Driscoll, 168 Ore. 187, 120 P.2d 768 (1942) Fossi v. George, 191 Ore. 113, 228 P.2d 798 (1951); Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965); Tracy v. Brecht, 3 Cal.App.2d 105, 39 P.2d 498 (1934); Knickrihm v. Hazel, 3 Cal.App.2d 721, 40 P.2d 305 (1935); Noble v. Key System, Ltd., 10 Cal.App.2d 132, 51 P.2d 887 (1935); Frisvold v. Leahy, 15 Cal.App.2d 752, 60 P.2d 151 (1936); Tate v. Borton, 272 S.W.2d 333 (Ky.App. 1954); Sahli v. Fuehrer, 127 N.W.2d 900 (N.D. 1964). Cf. Jensen v. Chicago, M. St. P. Ry., 133 Wn. 208, 233 P. 635 (1925). [3] Miss Bevis admitted to the consumption of at least five stubbies or glasses of beer during the course of an evening when beer appeared to be readily available.