Oliver v. Clemons' Estate

Citation142 Ind.App. 499,236 N.E.2d 72
Decision Date22 April 1968
Docket NumberNo. 1,No. 20557,20557,1
PartiesCharles OLIVER b/n/f Woodrow Oliver, Appellant, v. In the Matter of the ESTATE of Earnest CLEMONS, Deceased, to John R. Nesbitt, Administrator, Appellee
CourtCourt of Appeals of Indiana
Dale S. Ellis, Rensselaer, Fred Schwanke, Monticello, for appellant

Thomas B. Dumas, William J. Moriarty, Jr., Rensselaer, Charles S. Siferd, Monticello, for appellee.

PRIME, Judge.

An action was brought by Woodrow Oliver to recover damages for personal injuries sustained by his son, Charles Oliver. Those injuries resulted when the automobile in which Charles was riding struck a bridge abutment and overturned. Named in the suit was the estate of the alleged driver of the auto, Earnest Clemons. Clemons and a third occupant died at the scene; the Oliver youth alone survived the crash.

The issues were formed by a complaint in two paragraphs. A motion to strike directed to the second paragraph was sustained. The ultimate issues were thus joined by the allegations of paragraph one and defendant-appellee's answer thereto in general denial.

Trial was commenced before a jury. After the plaintiff had presented this case, the defendant moved the court to direct the jury to return a verdict in defendant's favor. This motion was granted, and judgment was rendered accordingly on the verdict.

Appellee raised a procedural objection to the complaint regarding its sufficiency to state a cause of action under the Guest Statute. It is contended that since the complaint did not contain the words '* * * guest, while being transported without payment therefor', the plaintiff must proceed on a theory of common law negligence. This objection must fail for two reasons.

First, if there is doubt '* * * as to what the theory of a complaint is, the court will determine it from the general scope and tenor of the pleading'. Ott v. Perrin (1945) 116 Ind.App. 315, 63 N.E.2d 163.

It cannot be seriously contended that the defendant did not know what theory plaintiff was proceeding under. Defendant filed a pre-trial motion entitled 'Motion to Require Plaintiff to Elect and Adopt a Specific Theory of His Case, or Purported Cause of Action, as Stated in Pleading Paragraph II of Plaintiff's Complaint', wherein the following language appears:

'The plaintiff's second pleading paragraph of complaint does not state the capacity or relationship that existed between plaintiff and defendant's decedent, Earnest Clemons. For this reason defendant Secondly, appellee cites several cases that contain language that would seem to support his position, but in fact do not. In Ott v. Perrin quoted supra, it was held that a complaint lacking the words of art stated a cause of action on the theory of common law liability. In the same opinion, however, that court made the comment quoted. The Ott decision relied on Long v. Archer which dealt in part with a similar complaint. There, in construing the effect of an allegation that plaintiff was a passenger, but no allegation of non-payment, the court stated:

can not tell upon what theory pleading Paragraph II is founded. If this paragraph proceeds upon something other than the guest statute, it is not so shown and if it does proceed upon the theory that claimant was a guest in the Clemons car it is nothing more than a restatement of pleading Paragraph I.'

'The use of term 'passenger' in the first paragraph of the complaint, as describing the relationship between the plaintiff and the appellant, does not necessarily imply that the plaintiff was a guest in the contemplation of the statute.'

'We cannot say, as a matter of law, that the first paragraph of complaint alleged that the plaintiff was a guest within the meaning of the statute, but it disclosed the existence of some relationship that imposed upon the appellant the duty to exercise ordinary care toward and with respect to the plaintiff. If the appellant desired the complaint to be made more specific as to the relation of the plaintiff to him he should have moved that this be done.' (Our emphasis) Long v. Archer (1943) 221 Ind. 186, 46 N.E.2d 818.

Here, then is a defendant objecting to the plaintiff's acceptance of a more stringent burden of proof, wilful and wanton misconduct, instead of simple negligence. There was no surprise, nor was there doubt as to the theory of the complaint. If defendant felt impending prejudice, he could have filed a motion to make more specific.

'If a plaintiff fulfills the requirements of the burden placed upon him by such statute of alleging wanton and wilful misconduct, the fact that the allegations of the complaint merely referred to the plaintiff as a guest and omitted the allegation 'without pay', would not result in prejudice to the defendant in the absence of a motion to elect as to the theory upon which the cause was to be tried, whether under the common law theory of liability or under the guest statute.' Kirsch v. Harker (1950) 120 Ind.App. 66, 89 N.E.2d 924.

The sole question we thus consider is whether the plaintiff-appellant failed, as a matter of law, to offer evidence of probative value sufficient to establish a prima facie case. In examining this question the trial court, and this court in turn, must consider all facts presented as true, and then decide whether those facts, without rebuttal, would be sufficient to allow the plaintiff to recover the damages sought.

In examining the facts presented by the plaintiff, it is well settled that all reasonable inferences that may be drawn from the facts must be indulged in plaintiff's favor, for the purpose of determining the necessity of the defendant presenting his evidence, and finally submitting issuable facts to the jury. Clouse v. Peden (1962) 243 Ind. 390, 186 N.E.2d 1.

To establish a prima facie case for recovery in this action, the plaintiff's evidence, together with all reasonable inferences, must be...

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13 cases
  • Mamula v. Ford Motor Co., 371A49
    • United States
    • Indiana Appellate Court
    • December 6, 1971
    ... ... 372, 90 N.E.2d 809; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886; Oliver v. Clemons' Estate (Ind.App.1968), 236 N.E.2d 72 ...         Therefore, a directed ... ...
  • Gregory v. White Truck & Equipment Co., Inc.
    • United States
    • Indiana Appellate Court
    • February 20, 1975
    ...Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886; Oliver v. Clemons' Estate (1968), 142 Ind.App. 499, 236 N.E.2d 72. As the subject of avoidance of the quantum of evidence necessary to avoid a directed verdict was treated in some ......
  • Smith v. Chesapeake & Ohio R. Co.
    • United States
    • Indiana Appellate Court
    • May 30, 1974
    ...Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d 886; Oliver v. Clemons' Estate (1968), 142 Ind.App. 499, 236 N.E.2d 72. 'Therefore, a directed verdict is proper only when the evidence is without conflict and is susceptible of but one......
  • Andert v. Fuchs
    • United States
    • Indiana Appellate Court
    • October 31, 1978
    ...intoxication alone is not evidence of wanton or wilful misconduct within the meaning of the Guests Statute. Oliver v. Estate of Clemons (1968), 142 Ind.App. 499, 236 N.E.2d 72. However, intoxication may combine with other elements to constitute such misconduct. Thus, intoxication accompanie......
  • Request a trial to view additional results

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