Toppass v. Perkins' Adm'x

• Decision Date: 16 February 1937
• Citation: 268 Ky. 186,104 S.W.2d 423
• Parties: TOPPASS v. PERKINS' ADM'X.
• Court: Kentucky Court of Appeals

104 S.W.2d 423

268 Ky. 186

TOPPASS v. PERKINS' ADM'X.

Court of Appeals of Kentucky

February 16, 1937

Appeal from Circuit Court, Franklin County.

Action by the administratrix of the estate of Velma Perkins against Charles Toppass and another, tried with actions by George Hodges and by Ethel Long against defendants. From a judgment against named defendant only, he appeals.

Affirmed.

J Marshall McCann, of Lexington, for appellant.

L. W Morris and Marion Rider, both of Frankfort, for appellee.

STANLEY Commissioner.

The appeal is by Charles Toppass from a judgment for $5,000 rendered against him in favor of the administratrix of the estate of Velma Perkins, deceased, for damages for her death in an automobile accident. The suit was prosecuted against Toppass and Raymond Saunders, but the verdict was in favor of Saunders. The suit of George Hodges and Ethel Long against both defendants for injuries sustained in the same accident were tried with this case. Miss Long recovered a judgment for $200 against Toppass, which is not appealed, but the verdict went against Hodges. The place of the accident was about three miles from Frankfort at what is known locally as Black's Pond. There is no claim on appeal that the defendant was not negligent.

1. We have a novel situation. The defendant, who was driving his own car, insists that he was drunk, and his condition caused the accident. The plaintiff insists the driver was not drunk. The anomaly arises from the defense of contributory negligence on the part of the decedent in having become the guest of the defendant knowing him to be intoxicated.

The parties were friends living in the Thorn Hill section of Frankfort. On Saturday afternoon, June 2, 1934, Velma Perkins and Ethel Long went to the business part of the city and there saw Toppass and Hodges sitting in the former's automobile. Toppass offered to drive the young women home and they got in the rear seat with Hodges. He drove around a square and instead of going to Thorn Hill, went up the Georgetown and Lexington road over their protest. Toppass insisted that Miss Perkins get in front with him and she climbed over there while the car was in motion. About that time he began driving very fast. The young ladies began screaming and calling upon him to stop and let them out. Hodges called upon him to slow down. Continuing towards Georgetown at a terrific rate of speed, Hodges reached over from the rear seat to turn off the ignition key, but the speed of the car going around a curve threw him off his balance. About that time the machine struck the approaching car of Saunders. Such is the evidence for the plaintiff.

Toppass testified that Hodges had asked him to drive the party to Stevens' road house and there was never any purpose to take the young ladies home. They were out for a joy ride. He says there was no screaming or demand that he stop. Toppass related what took place until, as he said, he indistinctly remembered seeing the Saunders' car approaching. He knew nothing more.

According to Toppass and Hodges, each of them had had five or six drinks of moonshine and of drug store whisky since noon. Toppass was not sure whether they had drunk a pint or a quart together. Witnesses at the scene of the accident stated that both men were drunk. William Hieatt, who was talking to the men just before the two girls came up, had declined to take a drink with them. He saw no liquor, although he could tell that the men were drinking. Miss Long is very positive that she smelled no odor of liquor before she and Miss Perkins got in the car and says that Toppass did not appear to have been drinking. She first detected the odor when Hodges was thrown over against her by the car going too fast around a curve. Hodges testified that Toppass had been driving in and around the city during the afternoon without difficulty and that he was not drunk, which condition he says is when a man staggers. But Toppass himself testifies he was drunk. As to whether or not the defendant was entitled to a directed verdict upon the ground that the plaintiff was guilty of contributory negligence as a matter of law, of course, depends on the consideration of the evidence viewed in the light most favorable to the plaintiff. The disposition of this point may well be made in connection with the argument that the instruction on contributory negligence was erroneous to the prejudice of the defendant's substantial rights. The instruction given is as follows:

"The court instructs the jury that it was the duty of the plaintiff's intestate, Velma Perkins, at the time, place and on the occasion mentioned in the evidence, to exercise ordinary care for her own safety; and if the jury believe from the evidence that at the time the plaintiff's intestate, Velma Perkins, entered or got into the automobile of the defendant, Charles Toppass, the plaintiff's intestate, Velma Perkins, knew or by the exercise of ordinary care could have known, that the defendant, Charles Toppass, was so intoxicated as to be unable to properly manage, operate or control his car; or if the jury believe from the evidence that the decedent, Velma Perkins, after beginning the journey, which allegedly resulted in her death, knew, or by the exercise of ordinary care could have known, that the driver of said automobile was so intoxicated as to be unable to properly manage, operate or control his car, and failed to call upon the driver of said car to stop and to permit her to alight therefrom; or if the jury believe from the evidence that the decedent, Velma Perkins, after beginning the journey, which allegedly resulted in her death, failed to take any reasonable precaution, which by the exercise of ordinary care she should have taken, to avoid injury to herself, then, or in either event, she was guilty of contributory negligence, and the law is for both of the defendants, and the jury so believing will find for both of the defendants."

The argument is made that the qualification (which we have italicized) places too great a burden upon the defendant in proving contributory negligence.

There are two questions of fact involved in the matter of contributory negligence of the guest in cases of this kind. One is that the driver was intoxicated, and the other is that the guest knew or ought to have known of his intoxication. In reality, the claim of the plaintiff was not that Toppass had not been drinking and was not thereby intoxicated in some degree, it is that she was wholly unaware of it when she accepted his invitation to ride and had protested his conduct and did all she could to escape when he became reckless. As was said in Winston's Adm'r v. City of Henderson, 179 Ky. 220, 200 S.W. 330, 332, L.R.A.1918C, 646:

"One who voluntarily permits himself to be driven about the streets in a motor car operated by a drunken chauffeur does not exercise ordinary care for his own safety, and he assumes the danger incident to such drive when he voluntarily places himself in a car which is managed and controlled by an intoxicated driver. This is not because of the imputed negligence rule, but because of the personal negligence of the passenger."

And further:

"Even while prosecuting a journey if the driver becomes intoxicated so as to lose control of the vehicle, or is reckless, and this is known to the passenger, ordinary care requires the passenger to call upon the driver to stop and allow him to alight, or turn the management of the vehicle over to another capable of properly directing it, and if the passenger fails to exercise such care and is injured as a result of the negligence or recklessness of the driver and a third person, he may not have recourse of such third person, this being denied him because of his own negligence rather than upon the ground that the negligence of the driver is imputed to him."

In W. F. Robinson & Son v. Jones, 254 Ky. 637, 72 S.W.2d 16, 19, it is truly said:

"It is known of all men that the drinking of intoxicating liquor, though it be not done to the extent of actual intoxication, begets a spirit of recklessness, and is responsible for numerous accidents."

It was held that evidence of the intoxication of the driver of an automobile involved in an accident should go to the jury in connection with other circumstances on the question of negligence and contributory negligence. See, also, Brady v. B. & B. Ice Co., 242 Ky. 138, 45 S.W.2d 1051.

While the standard of duty of a guest is the same as that of the driver, namely, to exercise ordinary care, the conduct required to fulfill that duty is ordinarily different because the circumstances are different. Precautions to be taken by the passenger are in any event less than those required of the driver. Chambers v. Hawkins, 233 Ky. 211, 25 S.W.2d 363; Haller's Pet Shop v. Pearlman, 253 Ky. 130, 69 S.W.2d 9.

In the exhaustive treatment in 4 Blashfield's Cyc, of Automobile Law (Permanent Ed.) § 2453, of the subject of contributory negligence of a guest or passenger in an automobile driven by an intoxicated person, the reference as taken from the opinions of the courts vary in terms as to the intoxication or degree thereof. We accept as a correct rule of practice that:

"Usually it is a question of fact whether a driver was so far intoxicated at the time of an accident as to affect his ability to operate the car, and whether his passenger had any cause, in the exercise of ordinary care, to be apprehensive on that account for his own safety."

Whether or not an instruction not requiring the jury's belief that the driver was intoxicated to the extent described in the instruction given here would be proper where the evidence disclosed that he had merely been drinking, and was not really and perceptibly under the...