Brown v. Saucerman
| Citation | 237 Ind. 598,145 N.E.2d 898 |
| Decision Date | 21 November 1957 |
| Docket Number | No. 29489,29489 |
| Parties | Ronald BROWN, Appellant, v. Eulaia SAUCERMAN, Appellee. |
| Court | Supreme Court of Indiana |
Rabb Emison, of Emison & Emison, Vincennes, for appellant.
Ernest Tilly, Jr., Bicknell, for appellee.
This case is here on transfer from the Appellate Court under Acts 1901, ch. 247, § 15, p. 565, being § 4-209, Burns' 1946 Replacement, four Judges failing to agree.
Appellee brought this action under Acts 1937, ch. 259, § 1, p. 1229, being § 47-1021, Burns' 1952 Replacement, to recover damages for the death of her daughter resulting from personal injuries sustained while a guest in an automobile driven by appellant.
Trial was by jury, which returned a verdict for appellee in the amount of $8,000.
Section 47-1021, supra, provides as follows:
'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.'
The determinative question here presented is whether the evidence, together with reasonable inferences which may be drawn therefrom, is sufficient to establish wanton or wilful inconduct on the part of appeallant.
The rule on wanton or wilful misconduct is concisely stated in Becker v. Strater, 1947, 117 Ind.App. 504, at page 506, 72 N.E.2d 580, 581, as follows:
'Willful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that injury will probably result.' Citing authorities.
The burden was upon appellee herein to show by a preponderance of the evidence that appellant was conscious of his conduct, '* * * and with knowledge of existing conditions that injury would probably result, and with reckless indifference to consequences, he 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.
Acts of alleged wanton or wilful misconduct by appellant are charged in appellee's second amended complaint as follows:
'By driving at such unreasonably high rate of speed under the circumstances as to endanger the safety of others including the said Sue Ann Saucerman by driving said motor vehicle at from 75 to 80 miles per hour at a time when the roadway was wet and slick from rain and while rain was falling; while driving said automobile having tires with insufficient tread to properly control the operation of same so that said automobile could not be kept in defendant's right hand lane of traffic while approaching a curve to the right in the direction said defendant was traveling, which said curve could not be executed safely at said rate of speed under said circumstances.
'That as a result of the said wanton manner in which the defendant, Ronald Brown, drove said automobile he did then and there drive said automobile to the left of the center line of the roadway and into the path of a motor vehicle, to-wit: A Tractor-trailer approaching from the opposite direction, while said Tractor-trailer was in its right-hand lane of traffic and the said two motor vehicles did then and there and as a result thereof collide.'
Evidence on this point most favorable to appellee may be summarized as follows:
On the evening of June 13, 1953, appellant, another boy, the deceased and another girl drove to a 'Drive-In' three-quarters of a mile south of Bicknell, Indiana, on State Road 67. They stayed about one hour, then left going south on Road 67 toward Vincennes, Indiana. It was dark and raining at the time.
An attendant at the Drive-In, a witness for appellee, testified, in pertinent part, as follows:
'Q. You were inside the Drive-In at that time? A. I was.
'Q. Tell the Court and Jury just what happened there, which way did they go and in what manner? A. When he left the Drive-In you make a little curve to go out to the pavement. The boy got in the car and when he started he went so fast up to the pavement that when he stopped it made the car slide sort of sideways and threw the gravel. He stopped long enough to look and see if anything was coming, I guess that's what he was doing, and he pulled out and the tires just squealed and made a loud noise and came in the cirection of Vincennes. As we watched him, by the time he left our line of vision he was going at a teriffic rate of speed.
'Q. About how far down the road towards Vincennes can you see a car after it leaves the Drive-In? You have any idea on that? A. I'd be afraid to say how far because I can't judge distance like that.
'Q. What is there on the other side of the road as you come towards Vincennes? A. The Sunshine Mine.
'Q. And tell the Court and Jury, in case they are not acquainted with that, where the Sunshine Mine is in relation to this Drive-In. A. As you come towards Vincennes the Drive-In is on the lefthand side of the road and I would say approximately one-half a mile toward Vincennes on the right side of the road is the Sunshine Mine.
'Q. Would you say that--where in relation to the Sunshine Mine did that car leave your vision? A. Well, it would be a little piece past the Sunshine Mine.
'Q. Towards Vincennes? A. Toward Vincennes.
'Q. And at that place when the car left your vision a little past the Sunshine Mine it was going at a high rate of speed? A. A terrific rate of speed.
* * *
* * *
'Q. And what did you estimate the speed of that car to be? A. 'I'd say the boy was doing seventy--seventy-five or eighty miles an hour.'
On cross-examination this witness again testified that it was more than one-half mile to the point where the car left her vision, and at that time it was traveling 'real fast' and was going 75 or 80 miles per hour. 1
A 'curb-hop' at the Drive-In, also a witness for appellee, testified that appellant left there about 8 P.M., that he drove very fast, and that 'He cut sharp to the right and as he stopped he just skidded and threw rocks back and it hit the building rocks threw back so far.'; and, further, as follows:
The driver of the truck with which appellant collided testified that he was driving north of Vincennes on State Road 67, at about 8:30 P.M., and as he approached a curve on the crest on a hill he saw the lights of a car coming at 'a fast rate of speed.' He left the highway to avoid an accident but the car hit his truck about four feet across the center line, on his side of the road, knocking the left front wheel of the truck into the oil pan. It was dark and raining at the time and the pavement was slick. The truck traveled 15 to 20 feet after the impact and the car careened off to the other side of the road.
A state policeman, who arrived at the scene of the accident at about 9:05 P.M., testified that it had been raining and that the pavement was wet.
He further testified that he examined appellant's car the next day and found the front tires had very little tread but the rear tires did have some tread. He estimated the speed of the car from the damage done to be 'better than sixty-five' miles per hour.
The rule by which we are guided in determining whether the evidence as above summarized is sufficient to sustain a charge of wanton or wilful misconduct under the guest statute is reaffirmed in Miller v. Smith, 1955, 125 Ind.App. 293, at page 299, 124 N.E.2d 874, 877, as follows:
Appellee asserts that the speed at which appellant was driving at the time of the accident was so excessive as to constitute wanton or wilful misconduct.
The question as to whether speed alone is sufficient to establish wanton or wilful misconduct is one of first impression in this State; but other States having similar guest statutes have held that excessive speed alone is not sufficient to prove wanton or wilful misconduct. Birmelin v. Gist, 1954, 162 Ohio St. 98, 120 N.E.2d 711, 717, Davis v. Hollowell, 1950, 326 Mich. 673, 40 N.W.2d 641, 15 A.L.R.2d 1160; Meyer v. Culley, 1952, 69 Wyo. 285, 241 P.2d 87; Rodney v. Staman, 1952, 371 Pa. 1, 89 A.2d 313, 32 A.L.R.2d 976.
We adopt the rule as stated by the Wyoming Supreme Court in Meyer v. Culley, supra, at page 94 of 241 P.2d:
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