McAllister v. Travelers Ins. Co.

• Decision Date: 31 May 1960
• Docket Number: No. 5030,5030
• Citation: 121 So.2d 283
• Parties: Robert G. McALLISTER v. TRAVELERS INSURANCE CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 283

121 So.2d 283

Robert G. McALLISTER v. TRAVELERS INSURANCE CO. et al.

No. 5030.

Court of Appeal of Louisiana, First Circuit.

May 31, 1960.

Weber & Weber, Clark W. Taylor, Baton Rouge, for appellant.

Taylor, Porter, Brooks, Fuller & Phillips, David Ellison, Jr., Baton Rouge, for appellee.

Before ELLIS, LOTTINGER and LANDRY, JJ.

LANDRY, Judge ad hoc.

Plaintiff, Robert G. McAllister, prosecutes this appeal from the adverse judgment of the trial court rejecting his demand in tort for personal injuries sustained while riding as guest passenger in an automobile owned and being operated by defendant Jerome W. Hilton, insured of defendant Travelers Insurance Company.

The accident out of which this litigation arose occurred in the City of Baton Rouge Louisiana, at approximately 8:55 P.M., November 9, 1957. A stipulation appearing of record recites that the accident occurred under the following circumstances: '* * * said accident was caused by the negligence of Jerome W. Hilton while driving under the influence of intoxicating and alcoholic beverages. It is further stipulated that a 1957 Ford automobile driven by Jerome W. Hilton collided with a parked automobile properly parked off the Scenic Highway in front of the Buckhorn Bar * * *'.

On the afternoon of the accident plaintiff, an acquaintance, Ben Atkins and defendant Hilton met in a bar and engaged in a drinking spree for a period of at least two hours during which interval they visited two or more establishments where intoxicating beverages are dispensed and each consumed several drinks. While defendant Hilton was driving plaintiff home the accident occurred.

In support of his asserted cause of action plaintiff relies upon three principles. Plaintiff argues that Hilton's negligence being conceded, defendants bear the burden of proving the affirmative defense of contributory negligence advanced by defendants on the premise plaintiff assumed the risk of riding with an intoxicated driver. In this connection, plaintiff maintains defendants have failed to prove the particular negligence of Hilton which proximately caused the accident which burden defendant must discharge in substantiation of their defense of contributory negligence or assumption of risk. Stated otherwise, plaintiff asserts it is incumbent upon defendants to prove the precise negligence of Hilton which resulted in the accident in order to show the risk plaintiff assumed. Secondly, plaintiff argues that assuming Hilton was inebriated at the time of the accident, it is incumbent upon defendants to establish that plaintiff knew or should have known his host driver was under the influence of alcoholic beverages. Finally, plaintiff contends he may not be found guilty of contributory negligence or assumption of risk because his own intoxication deprived him of the capacity to appreciate or comprehend the danger incident to riding with a drunken driver. In other words, plaintiff argues that an intoxicated guest may not be held to have assumed the hazards attendant upon riding with an inebriated driver because, under such circumstances, the guest lacks the will to elect to expose himself to the danger involved and without such voluntary decision on his part there can be no contributory negligence or assumption of risk.

For a case involving circumstances of the nature presented, the record is remarkably free of serious dispute as to what transspired on the occasion of the accident in question. On the afternoon of the accident plaintiff went to the home of a friend and acquaintance, Ben Atkins. Plaintiff estimated the time of his visit to Atkins' home at approximately 6:30 P.M. whereas Atkins' testimony establishes their initial meeting occurred between 1:00 and 3:00 P.M. Irrespective of the exact time of their encounter, the record shows that plaintiff and Atkins shortly thereafter visited a bar known as Tot's Lounge where they met the defendant Hilton, a business associate of plaintiff, who had been in the place for an undisclosed length of time and who admittedly had partaken of some alcohol prior to the arrival of plaintiff and Atkins. The three men immediately began drinking together and after having imbibed several drinks, left Tot's Lounge to visit a similar establishment known as the Brown Door, transportation to said latter place being provided by Hilton who drove his automobile there without mishap. After partaking of additional intoxicants at the Brown Door the party decided to return Tot's Lounge. Before entering Hilton's car for the return trip to Tot's Lounge, the parties noted the presence of a nearby police officer who evidently looked upon them with understandable suspicion which circumstance prompted Atkins to request Hilton to let him drive as Atkins felt the officer might question Hilton's sobriety. All agreed discretion dictated that Atkins was better qualified to drive and the return journey to Tot's Lounge was commenced with Atkins driving, Hilton occupying the front seat next to Atkins and plaintiff sitting on the rear seat of the automobile. During the course of the trip an argument ensued between plaintiff and Hilton culminating in plaintiff striking Hilton on the head with a beer bottle with such force that the bottle shattered and lacerated Hilton's scalp to the extent of causing rather profuse bleeding. Upon arriving at Tot's Lounge the three comrades immediately proceeded to the rest room for the purpose of attending Hilton's wounds and having accomplished this objective had another drink together following which development Atkins departed. Plaintiff and Hilton remained in the lounge an undisclosed length of time and plaintiff wishing to go home summoned a cab. Upon learning that plaintiff had called for a taxi, defendant offered to drive plaintiff home which offer plaintiff accepted. While en route to plaintiff's residence the accident occurred.

Despite the evidence of record, learned counsel for plaintiff vigorously contends the testimony does not show Hilton was intoxicated or that his intoxication was a proximate cause of the accident. We disagree with learned counsel in this regard for the reason the record indicates Hilton had been drinking at Tot's Lounge for at least two hours preceding the arrival of plaintiff and Atkins. By his own admission, Hilton had consumed at least 6 drinks while in the company of plaintiff. Atkins' testimony may reasonably be interpreted as showing that whereas he did not consider Hilton so drunk Hilton could not drive upon leaving the Brown Door, he did consider Hilton's condition such that he felt better able to drive because he had had less to drink than Hilton. Notwithstanding plaintiff's denial that Hilton was drunk, plaintiff freely admitted that Hilton was 'feeling good' and was 'giddy' at the time they left the lounge on the way to plaintiff's home.

We note with considerable interest the testimony of Sergeant Sanchez of the City Police (the officer who investigated the accident) to the effect that at 11:40 P.M. ...