Pritchard v. Peppercorn & Peppercorn, Inc.

• Decision Date: 12 June 1957
• Citation: 96 So.2d 769
• Parties: Thelma J. PRITCHARD, Appellant, v. PEPPERCORN and PEPPERCORN, Inc., a Florida corporation, and Kerwell Lolley, Appellees.
• Court: Florida Supreme Court

Page 769

96 So.2d 769

Thelma J. PRITCHARD, Appellant, v. PEPPERCORN and PEPPERCORN, Inc., a Florida corporation, and Kerwell Lolley, Appellees.

Supreme Court of Florida, Special Division B.

June 12, 1957.

Rehearing Denied July 12 1957.

J. Russell Hornsby, Orlando, C. B. Tartari and Robert Eagen, Orlando, for appellant.

J. Thomas Gurney, Orlando, for appellees.

THORNAL, Justice.

Appellant Thelma J. Pritchard, who was plaintiff below, seeks reversal of a summary judgment entered in favor of the appellees, who were defendants below, in an automobile negligence death case.

The only point to determine is whether the record presented to the trial judge tendered a genuine issue on a material fact that would preclude the entry of a summary judgment.

Mrs. Pritchard sued the appellees Peppercorn and Peppercorn, Inc., and Lolley, claiming that her husband met his death as the result of the negligent operation of an automobile owned by Peppercorn and driven by Lolley. The fatal collision occurred at about 1:30 a. m., August 7, 1954, on Highway 50 east of Orlando. The deceased, Dale Pritchard, was driving westerly toward Orlando. Appellee Lolley, accompanied by one Redditt, was driving Peppercorn, Inc.'s truck in an easterly direction when the two vehicles collided resulting in Pritchard's death.

On a motion for a summary judgment, the appellees tendered the deposition of Lolley which in substance stated that when about 250 yards away from the Pritchard automobile he saw it start weaving from side to side crossing the centerline at times and then continuing westerly in the north traffic lane, which was the proper lane. Lolley maintained the operation of his car in the south traffic lane. When the Pritchard car was about 100 yards away, it again started weaving and as Lolley pulled his truck slightly off the paved road on the south side, he testified that the Pritchard automobile plowed into him. Lolley's deposition was corroborated by the affidavit of Redditt, his passenger. A Highway Patrolman, who appeared on the scene about ten minutes after the collision, stated that the front left wheel of the Pritchard automobile was about 3 feet into the south lane. He also testified that while he could smell alcohol, neither Lolley nor Redditt was drunk. Photographs of the scene of the collision supported the testimony of the Highway Patrolman showing the front left wheel of the Pritchard car well into the south traffic lane.

To meet these statements, the appellant offered the deposition of one Martha Abernathy in which she stated that she and another couple had met Lolley and Redditt about 7:00 p. m., August 6, at an establishment named the Trocadero, where only beer and wine were sold; that in order to obtain a bottle of whiskey she and Lolley proceeded to another place named the Pink Elephant where they bought a 'fifth' of whiskey; after an unspecified absence they then returned to the Trocadero where the party consumed the bottle of whiskey, and around midnight Lolley took her home. He left her at about 12:45 a. m. This affidavit states that when the affiant last saw Redditt (the exact time not being stated), he was drunk. The affidavit, however, does not certify that Lolley was drunk at any time.

The appellant also filed the affidavit of one Payne, who stated that he saw the Pritchard car about five minutes before the accident and that it was not weaving in the road.

The trial judge was of the view that no genuine material factual issue was tendered by the affidavits and depositions and thereupon entered a summary...