McDaniel v. Douglas Motor Co.

• Decision Date: 28 February 1969
• Citation: 438 S.W.2d 329
• Parties: Claude McDANIEL, Appellant, v. DOUGLAS MOTOR COMPANY, Louis Neal Jones and Charles Peters, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 329

438 S.W.2d 329

Claude McDANIEL, Appellant, v. DOUGLAS MOTOR COMPANY, Louis Neal Jones and Charles Peters Appellees.

Court of Appeals of Kentucky.

Feb. 28, 1969.

Hatcher & Lewis, Elizabethtown, for appellant.

Wayne J. Carroll, Louisville, for appellees.

OSBORNE, Judge.

The appellant herein, Claude McDaniel, was seriously injured when a car in which he was riding went off the road and wrecked. The appellee, Louis Neal Jones, was the driver of the car at the time and Charles Peters, originally a defendant in the action, was a passenger. The action has been dismissed as to Peters and he is not involved upon this appeal. Appellee Jones moved for a summary judgment upon the basis of the plaintiff's interrogatories and depositions which had been filed in the case. The basis for this motion was that McDaniel was contributorily negligent as a matter of law. This is based upon the fact that Jones was intoxicated and McDaniel was aware, or reasonably should have been aware, of this fact at the time.

The trial court granted summary judgment. We believe the judgment should be affirmed. It is well settled in this state that a passenger who rides in a car with a driver knowing him to be under the influence of intoxicating liquor is contributorily negligent as a matter of law if a wreck occurs as a result of the impairment of judgment occasioned by the drinking. Biddle v. Biddle, Ky., 414 S.W.2d 136 (1967); Johnson v. Johnson, Ky., 414 S.W.2d 895 (1967).

The question here is whether the elements were so conclusively shown by the matters contained in the record as to entitle the defendant to summary judgment on the ground of plaintiff's contributory negligence. Morton v. Allen Construction Co., Ky., 416 S.W.2d 733 (1967). The accident occurred early on a Sunday morning. The previous Saturday, Peters had bought a car from a local automobile dealer. He had trouble with the car on the way home and returned it to the dealer and borrowed the car in which the wreck occurred. After borrowing the car, he picked up Louis Neal Jones and went to a Fall Festival at a local high school. There Claude McDaniel and two other men joined them and they proceeded to a nearby town (a 45-minute drive) to purchase beer and whiskey. After the purchases were made, they returned to the Fall Festival, remained for awhile and left for a third location to buy hamburgers. By the time they left the Fall Festival, the other two men had left them. The collision occurred on a curvy road. Jones testified he was driving 65 to 70 miles per hour and just couldn't made the curve. He further testified that he had drunk approximately one-half of one-fifth of 100-proof whiskey and two or three beers. He stated that he was not drunk however, he went on to explain this statement in the following terms: 'I was drinking, I mean, I was feeling what I drank. I feel what I drink. I mean, I can drink four or five beers and I feel it. But, as far as me getting dog drunk and getting out here and laying down and staggering and all, I don't do it.' He further testified that he was driving all right and that the wreck occurred because he was going too fast and didn't know the road.

Appellant's chief argument is that the testimony in the record does not prove that Jones was so intoxicated as to impair his ability to drive or that his drinking was the cause of the accident. They point to his testimony that the cause was his driving too fast on a road he did not know. We believe this argument to be without merit. He had consumed large quantities of whiskey and beer and the wreck was obviously due to bad judgment, viz., driving too fast on a curvy road he did not...