dissenting in part and concurring in part.
I dissent from that portion of the majority opinion holding there is no genuine issue of fact whether Chaney was guilty of wanton* and willful misconduct in driving the truck. In taking this position, I am fully cognizant of cases in this jurisdiction which clearly establish that driving while intoxicated alone is insufficient to prove wanton and willful misconduct under the Indiana Guest Statute. Andert v. Fuchs, (1979) 271 Ind. 627, 394 N.E.2d 931; Keck v. Kerbs, (1979) Ind.App., 395 N.E.2d 845; Sharp v. Egler, (7th Cir.1981) 658 F.2d 480; Oliver v. Estate of Clemons, (1968) 142 Ind.App. 499, 236 N.E.2d 72, trans. denied. Absent express statutory language making the intoxication of the driver a ground of liability to a gratuitous guest, courts generally have held that intoxication alone is not sufficient to render the driver liable to a guest on grounds of willful or wanton misconduct. 7A Am.Jur.2d Automobiles and Highway Traffic § 581 (1980). In my view, it is time this rule was changed, and the courts of this state should not be reluctant to change it. The rule was devised by judicial decision and can be changed by judicial decision.
According to our supreme court, the underlying basis of wanton and willful misconduct under our guest statute is that the driver “conscious of his conduct and with knowledge of existing conditions that injury would probably result, and with reckless indifference to the consequences, ... consciously and intentionally did some wrongful act or omitted some duty which produced the injuries.” Bedwell v. DeBolt, (1943) 221 Ind. 600, 607, 50 N.E.2d 875, 878. That court also has stated that “to constitute ‘willful or wanton misconduct’ there must be a ‘perverse motive,’ in that the misconduct must be conscious and intentional and of such a nature that under the known existing conditions injury will probably result therefrom.” Sausaman v. Leininger, (1957) 237 Ind. 508, 514, 146 N.E.2d 414, 418.
Here, the evidence before the court indicated that Chaney and Lexie Roberts played poker from 3:30 p.m. to 5:15 p.m. and had one or two beers and some whiskey. They then went to the Oolitic 66 Tavern, arriving about 7:30 p.m. Sometime between 9:00 p.m. and 12:30 a.m., Lexie left the tavern and went to the truck where he fell asleep. Chaney remained in the tavern until 12:30 a.m. Chaney was drinking in the tavern during this time. As he drove the truck from Oolitic enroute to Spring-ville, Chaney fell asleep and the truck left the pavement whereupon the accident which resulted in Lexie’s injuries occurred. This evidence clearly raises a genuine issue of fact of whether Chaney was intoxicated and whether his intoxication caused him to fall asleep, drive off the road, and resulted in Lexie’s injuries.
Driving while intoxicated is a wrongful act and was at the time herein involved. *1161IND.CODE § 9-4-1-54 (a class A misdemeanor, or a class D felony if it resulted in the death of another person).1
Becoming intoxicated ordinarily is the result of the conscious and intentional act of the drinker. There is no claim made here that Chaney drank intoxicants against his will or that drinks were poured down his throat by ruffians, or that he drank the intoxicants under any duress or coercion. Further, driving a motor vehicle is not an involuntary act. On the contrary, it is an act performed deliberately and intentionally by the driver. That driving a motor vehicle while intoxicated is, in addition to unlawful, an act which probably will produce injury should be well known to anyone who reads newspapers or listens to television or radio news accounts of the carnage on our highways caused by drunken drivers. Driving while intoxicated clearly is an act done with reckless indifference to the consequences and is indicative of the perverse motive described by our supreme court in Sctusaman. In fact, our supreme court quite recently stated “it is readily apparent to this Court that the operation of an automobile while intoxicated endangers the physical well-being of every occupant of the highway; ...” In the Matter of Bruce Jones, 464 N.E.2d 1281, 1282 (Ind. 1984).
The hazard to the public posed by drunk drivers was pointed out by the Supreme Court of New Mexico in Lopez v. Maez, (1982) 98 N.M. 625, 651 P.2d 1269, 1276, at footnote 7, wherein it cited 1980 statistics from The National Safety Council showing that approximately half of all auto fatalities are the result of drunk driving; that more Americans are killed each year as the result of drunk driving than from any other accident; and that in 1980, approximately 26,300 persons were killed in the United States in drunk driving accidents. We cited these data in our opinion in Elsperman v. Plump, (1983) Ind.App., 446 N.E.2d 1027, 1030.2
Driving a motor vehicle while intoxicated thereby endangering one’s guest rider is wanton and willful misconduct per se and it is high time we said so.
I am not at all deterred by the fact that our guest statute, except for certain named family members and hitchhikers, has been repealed as of September 1, 1984. There remain those unfortunate individuals who may be without a remedy if injured by intoxicated host drivers if we do not declare driving while intoxicated per se wanton and willful misconduct.
On this one issue I dissent. Otherwise, I concur in the majority opinion.
. Since repealed and replaced by IND.CODE § 9-11-1-1 et seq. Under present law, driving while intoxicated is a class A misdemeanor, IND.CODE 9-11-2-2; a class D felony if the driver has a previous conviction thereof within five years, IND.CODE 9-11-2-3, or if serious bodily injury results to another person, IND. CODE 9-11-2-4, and is a class C felony if it results in the death of another person, IND.CODE 9-11-2-5.
. At the very time this opinion is written, the Congress of the United States is engaged in enacting legislation which will reduce highway fund distributions to states which do not raise their legal drinking age to 21. This legislation was adopted by the Senate on June 26, 1984, by the overwhelming vote of 81-16, and has the full support of the President. The Indianapolis News, June 27, 1984. The primary purpose of this legislation is to reduce drunken driving by teen-agers and the injuries, death, and destruction resulting therefrom.
The highly publicized efforts of such groups as Mothers Against Drunk Drivers (MADD) stand as further evidence of public outrage over the dangers posed to the public by drunk drivers. No clear minded person can be unaware of the fact that drunk driving is a clear and present threat to the safety of the general public, and that a person who drives a motor vehicle while intoxicated does so with a reckless indifference to the consequences. Such drivers, should be held to know the serious risk of injury posed by their conduct to the public generally and especially to those persons riding with them.