Marcotte v. Travelers Ins. Co.

• Decision Date: 07 June 1971
• Docket Number: No. 50770,50770
• Citation: 258 La. 989,249 So.2d 105
• Parties: Curley L. MARCOTTE et al., Plaintiffs-Appellants-Relators, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees-Respondents.
• Court: Louisiana Supreme Court

Page 105

249 So.2d 105

258 La. 989

Curley L. MARCOTTE et al., Plaintiffs-Appellants-Relators, v. The TRAVELERS INSURANCE COMPANY et al Defendants-Appellees-Respondents.

No. 50770.

Supreme Court of Louisiana.

June 7, 1971.

Rehearing Denied June 28, 1971.

Clint L. Pierson, Baton Rouge, for plaintiff-appellant.

Taylor, Porter, Brooks & Phillips, W. S. McKenzie, William Luther Wilson, Baton Rouge, for defendants-appellees-respondents.

TATE, Justice.

The narrow issue before us is whether a driver's intoxication is proved to be a proximate cause of an accident.

A passenger and her father sue her driver and the driver's insurers to recover for personal injuries sustained in an intersectional collision. The court of appeal affirmed the dismissal of the suit. 236 So.2d 587 (La.App.1st Cir. 1970).

We granted certiorari limited to one assignment of error, to be noted below. 256 La. 846, 239 So.2d 355 (1970). When certiorari is granted limiting review to a specific issue and is denied as to other specifications of error, the court of appeal judgment is final as to those issues denied. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

The accident occurred when the host automobile ran a red light and crashed into a right-of-way vehicle. The latter was proceeding from the cross-street into the intersection by virtue of a green traffic signal. Our grant of certiorari was limited to the issue of whether the intoxication of the defendant host driver was a legal or contributing cause of the accident (Specification of Error No. 5). Neither the trial nor the appellate court had specifically so found.

We denied certiorari, however, to the court of appeal finding that the defendant driver was in a high state of intoxication at the time of the accident. (Specification of Error No. 7.) This latter factual finding is therefore conclusive upon us in this review.

Certiorari was primarily granted because both the trial and appellate courts had seemed to apply a rule of law that a guest passenger cannot recover from injuries received as the result of a driver's negligence where the passenger assumes the risk by knowingly riding with an intoxicated driver. 236 So.2d 590. ¹

This is not the correct rule of law. A passenger riding with a driver who has been drinking excessively only assumes the risk of drunk driving, that is, of accidents resulting from drunk driving. When an accident occurs involving a driver whose mental or physical faculties have been materially impaired due to the influence of intoxicants, a guest passenger who knows or should know of the driver's condition and nevertheless voluntarily rides with him cannot recover for injuries received in an accident caused in whole or in part by the driver's negligence, If the alcohol-induced impairment of the driver's ability is a substantial contributory cause of the driver's negligence.

See: Jones v. Continental Cas. Co., 246 La. 921, 169 So.2d 50 (1964); Dove v. Messina, 230 So.2d 615 (La.App.1st Cir. 1969); Gros v. U.S. Fidelity & Guaranty Co., 183 So.2d 670 (La.App.1st Cir. 1966); Viator v. Grain Dealers Mutual Ins. Co., 182 So.2d 165 (La.App.3rd Cir. 1966).

Further, the defendant, who bears the burden of proving contributory negligence must prove by a preponderance of the evidence that the driver's intoxication was a substantial factor contributing to the driver's accident. Jones v. Continental Cas. Co., 246 La. 921, 169 So.2d 50 (1964). Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

In the present instance, the plaintiff passenger argues that the prior courts only held that the defendant was negligent in running a red light. She points out that a perfectly sober person can do so.

Her theory of the facts is that the driver had rounded a curve just before the intersection and proceeded toward the yellow caution light when it turned to red just before he entered the intersection. The testimony, however, preponderates against such a factual conclusion.

The driver of the other vehicle, struck as it entered the intersection from the cross-street (Claycut), testified...