1. AUTOMOBILES
In wrongful death action against automobile dealer whose agents allegedly put decedent while in state of voluntary intoxication, in possession of an automobile which decedent shortly thereafter wrecked and in which he was killed, charge to jury, stating that decedent would not be chargeable with contributory negligence barring recovery if dealer's agents turned automobile over to decedent while decedent was so intoxicated that he was incapable of exercising judgment and discretion for his own safety, was erroneous.
2. AUTOMOBILES
When plaintiff's decedent operated automobile while intoxicated, he violated penal statute and was guilty of negligence. T.C.A. secs. 59-1031 to 59-1035.
3. AUTOMOBILES
Operation of automobile by plaintiff's decedent while in state of voluntary intoxication constituted contributory negligence and barred plaintiff's recovery in wrongful death action from automobile dealer whose agents allegedy put decedent, while in state of voluntary intoxication, in possession of automobile which decedent shortly thereafter wrecked.
FROM MACON
MR. JUSTICE McCANLESS delivered the opinion of the Court.
Lillie Mae Trent, the widow of Vestle Trent, brought suit against Highland Dodge, Inc., in the Circuit Court of Macon County for the wrongful death of her husband and recovered a judgment of ten thousand dollars. The Court of Appeals reversed and we granted certiorari.
The facts alleged and proved are that on April 8, 1966, the defendant by two of its agents, put the deceased, then in a drunken condition, in possession of an automobile and within a short time thereafter he wrecked the automobile and was killed.
The Circuit Judge included the following in his charge to the jury:
"If you find that the defendant turned an automobile over to the deceased when he was then drunk or intoxicated to such an extent he was incapable of exercising judgment and discretion for his own safety then Vestle Trent would not be chargeable with contributory negligence barring a recovery in this case."
We are of the opinion that this part of the charge was erroneous and that the Court of Appeals properly reversed the judgment of the Circuit Court.
That the deceased met his death because of his own negligence there can be no doubt from the record, the plaintiff herself having alleged and proved that the fatal wreck resulted from his drunkenness.
When the deceased operated the automobile while intoxicated, he violated a penal statute (Sections 59-1031 to 59-1035, T.C.A.) and was guilty of negligence. Stinson v. Daniel, 220 Tenn. 70, 414 S.W.2d 7. His voluntary intoxication did not relieve him of the consequences of his negligence, one consequence of which was to bar the plaintiff's recovery in this case. Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323.
The judgment of the Court of Appeals is affirmed.
DYER, CHIEF JUSTICE and CHATTIN and CRESON, Justices, concur.
HUMPHREYS, JUSTICE, not participating.