Vincent A. Theisen and Victor F. Battaglia (of Theisen & Lank), Wilmington, and Herman C. Brown, Dover, for plaintiff.
F. Alton Tybout (of Prickett, Prickett & Tybout), Wilmington, for defendant.
The plaintiff, Henry Asmuth filed an action against Franklin Kemper alleging that he was injured while riding in an automobile driven by Kemper. In the first claim for relief he alleges that Kemper drove with willful or wanton disregard of the rights of others; in the second claim he alleges that Kemper drove negligently. Asmuth's and Kemper's depositions have been taken and affidavits by Kemper and his wife, Shirley Kemper, have been taken.
The defendant moved for summary judgment on the ground that there is no dispute as to any material fact and that on the facts the defendant is entitled to judgment as a matter of law.
[54 Del. 170] Asmuth met Kemper for the first time on the night of the accident. The meeting was suggested to Asmuth by Kemper's sister, Mrs. Louise Robinson, on the day before the accident. Asmuth and Mrs. Robinson had been keeping company and had decided about two weeks previously to go to the V.F.W. dinner on November 9th. They had agreed that Mrs. Robinson would drive, but something went wrong with her car. At her suggestion the Kempers were invited. There was no plan to do anything except go to the V.F.W. dinner. Mrs. Robinson, Asmuth and the V.F.W. were all in Milford. The Kempers live in Ellendale, seven or eight miles from Milford. The Kempers came to Milford in their car, which was used during the balance of the evening.
The Kempers and Mrs. Robinson met Asmuth in his apartment about 7:30 or 8:00 and each had a highball of about one ounce of whiskey. They stayed in Asmuth's apartment for about 30 to 45 minutes. Asmuth bought the tickets for the dinner. So far as Kemper knew, his sister was providing the tickets. She wanted the Kempers to meet Asmuth.
Asmuth bought the tickets for himself and Mrs. Robinson about one week before the dinner. Kemper's tickets were bought when they went to the dinner. Asmuth did not tell Kemper that he, Asmuth, was paying for the tickets. Asmuth did not at any time pay Kemper for the use of his car. At the dinner, Asmuth and Kemper had two or three glasses of beer.
They left the V.F.W. hall because Mrs. Robinson or Kemper suggested going to Lewes to see Kemper's father. According to Kemper they left because Mrs. Robinson was not feeling well and wanted to take a ride. Nothing was said about the expenses of the trip to Lewes. When they started to Lewes, they had no plan except to visit the father. The trip to Lewes was about 20 to 25 miles. Since the father was not at home, they decided to go to a bar in Lewes at Kemper's suggestion.
[54 Del. 171] Kemper and Asmuth had about three bottles of beer. Kemper offered to pay for them. However, Asmuth insisted on paying for them. At the time they were in the bar, Mrs. Robinson and Asmuth said that Kemper was driving and that Asmuth would pay for the expenses of the evening. The expenses of the evening had never been discussed in Kemper's presence until they were in the bar in Lewes.
They left the bar and started back to Milford. On the way back to Milford defendant stated that he was tired.
During the entire evening Kemper's driving was proper and normal. Just prior to the accident Kemper was driving in a normal manner and was alert and watching what he was doing. Asmuth does not believe Kemper was sleepy before the accident or under the influence of alcohol. Asmuth does not know how the accident occurred. Except for the fact that the accident did occur, Asmuth has no knowledge that Kemper failed to keep control of the car. In all instances Kemper kept a lookout on the road ahead of him.
Kemper dozed immediately before reaching the abutment which the car subsequently hit. When the right wheel went off the road it woke him up and he tried to get back on the road but it was too late.
His sister died as a result of the accident and the other occupants of the car were injured. In the Court of Common Pleas for Sussex County, Kemper ...