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Gerhauser v. Deemer

Superior Court of Delaware, New Castle County

July 18, 1955

Laura M. GERHAUSER, Plaintiff,
v.
Buddy S. DEEMER, Defendant. J. Harry TRUITT, Plaintiff,
v.
Buddy S. DEEMER, Defendant. Mary E. HUTCHINSON, Robert N. Hutchinson, Plaintiffs,
v.
Buddy S. DEEMER, Defendant.

Suit for death and personal injuries to guest occupants arising from operation of defendant's automobile. The Superior Court in and for New Castle County, Layton, J., held that it could be found that defendant was driving in excess of 80 miles per hour while under the influence of liquor and collided in daylight with rear of truck parked in same lane of highway on which defendant's automobile was traveling and that, therefore, the injuries and death was caused by defendant's wilful or wanton disregard of the rights of others.

Motion for summary judgment denied.

Page 176

[49 Del. 329] Motion for summary judgment. Denied.

Frederick Gerhauser, J. Harry Truitt and Mary E. Hutchinson were guests in defendant's automobile returning to New Castle from a political convention in Dover in August, 1954. Defendant collided with the rear of a truck parked on the open highway, as the result of which Gerhauser died and the remaining plaintiffs were injured. This suit seeks damages for the death of Gerhauser and the personal injuries incurred by Truitt and Mrs. Hutchinson. Defendant has filed a motion for summary judgment upon two grounds: (1) That defendant was not operating his machine with a wilful or wanton disregard of the rights of others and (2) If so, plaintiffs are barred from recovery under the doctrine of voluntary assumption of risk.

W. S. Satterthwaite, Wilmington, for Laura M. Gerhauser.

George T. Coulson, Wilmington, for J. Harry Truitt.

Albert L. Simon, Wilmington, for Mary E. Hutchinson and Robert N. Hutchinson.

William H. Bennethum, Wilmington, for defendant.

LAYTON, Judge.

Viewing the evidence in the light most unfavorable to defendant, a jury could find the following facts. Gerhauser, Truitt and Mrs. Hutchinson were guests of Deemer who drove them to Dover. After the business of the convention, these four had dinner at a restaurant. Defendant had a heavy steak dinner and two bottles of ale. Thereafter, they drove a few hundred yards to a motel at which a large cocktail party was being held. Deemer had three highballs within a period of twenty-five or thirty minutes. When they departed for New Castle, Deemer ‘ gunned’ the car causing it to skid. Within a minute or two thereafter, Mrs. [49 Del. 330] Hutchinson warned him he was traveling too fast. As they passed through Smyrna (about 11 miles north of Dover) defendant passed a truck at high speed and so close that it caused Truitt again to warn Deemer to slow down. A few miles farther on, defendant's car passed another car, the occupants of which estimated that Deemer was traveling up to 80 miles an hour. Shortly thereafter, Deemer's speed was such as to cause one of the passengers to lean forward and say ‘ Deemer, you b___, slow down.’ Deemer paid no attention and, in fact, speeded up to a speed which was estimated by Truitt to have been 75 M.P.H. but which a jury may have found was over 80 M.P.H. As they approached the scene of the accident, they were traveling on the east lane of the northbound portion of a dual highway. It was daylight and there was full visibility. They came up a slight rise onto a plateau where the road was almost level and straight for 1,200 ft. A truck was parked in the same lane as theirs at the other end of the plateau some 1,200 ft. distant. It was visible for this entire distance. Defendant did not see the truck until just before the collision as indicated by the fact that his car skidded 50 ft. directly into the rear of the truck. Deemer, although not drunk, was under the influence of whiskey and this together with his high rate of speed caused the accident.

Title 21, Del.C. § 6101(a) reads:

‘ No person transported by the owner or operator of a motor vehicle, boat, airplane or other vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident was intentional on the part of such owner or operator, or was caused by his wilful or wanton disregard of the rights of others.’

The quoted statute has been construed by this Court in Gallegher v. Davis, 7 W.W.Harr. 380, 183 A. 620, 622. There, plaintiff, a guest, was riding in Law's machine which was being driven on a through highway at 60 M.P.H. ...


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