dissenting. I dissent from the ruling of the majority upon the authority of Sparks v. Porcher, 109 Ga. App. 334 (136 SE2d 153), cert. den. 109 Ga. App. 885, in which five judges agreed that “[u]nder the facts of this case a jury question was presented as to whether or not the plaintiff knew that the defendant was intoxicated from consuming alcoholic beverages to the extent that it was less safe for him to operate the motor vehicle than if he had not consumed such alcoholic beverages” (see special concurrence of Presiding Judge Nichols, page 343), which is in direct conflict with the ruling of the majority here which determines this question as a matter of law rather than a matter of fact for the jury. However, even if Sparks v. Porcher was not a five judge case on the principle of law involved here and regardless of the various conflicting decisions of the Court of Appeals discussed in the Porcher case, *246we are bound by the older decisions of this court cited in the Porcher case and by the decisions of the Supreme Court, particularly, Powell v. Berry, 145 Ga. 696, 700, supra, in which that court held: “If a driver, from intoxication, is in a condition which renders him incapable of operating it [an automobile] with proper diligence and skill, and this is known or palpably apparent to one entering the car, this is a fact which may be proved for the consideration of the jury, along with other facts, to throw light on the question of whether such person exercised ordinary care in entering the car or in remaining in the car, or in reference to his conduct while in it.” The plaintiff testified in part: “Q. So he either had two or three drinks during the entire evening? A. That I know of. Q. Do you have any reason to believe he had more than that? A. No, sir.”
In my opinion in this case a jury question is presented and the trial court erred in granting a nonsuit.
I am authorized to state that Judges Hall and Quillian concur in this dissent.