Schwing v. McKibbin, 1269A249

Citation24 Ind.Dec. 35,148 Ind.App. 222,264 N.E.2d 629
Decision Date15 December 1970
Docket NumberNo. 2,No. 1269A249,1269A249,2
CourtCourt of Appeals of Indiana
PartiesWanda Sue (Roberts) SCHWING, Appellant, v. Judith L. (Lang) McKIBBIN, Appellee

Hubert E. Wickens, Don Hubert Wickens, W. Michael Wilke, Greensburg, for appellant.

Donald W. Ward, Feeney & Ward, Virginia Dill McCarty, Indianapolis, Phillips B. Johnson, Versailles, for appellee.

SHARP, Judge.

This is an appeal from an action for personal injuries brought by plaintiff-appellee, Judith L. McKibbin, against defendant-appellant, Wanda Sue Schwing, arising out of an automobile accident in which plaintiff-appellee was a non-paying guest. Trial was had by jury, which returned a verdict of $15,000. Appellant's Motion for a New Trial was overruled and this appeal resulted. Counsel for both parties have filed excellent briefs which have been most helpful.

The sole assignment of error is the overruling of the Motion for a New Trial, which contains the specifications that the verdict was contrary to law and that the trial court erred in refusing to give several of defendant-appellant's tendered instructions.

We are not to weigh the conflicting evidence, but rather, must examine the factual record with all inferences in favor of the judgment below. The essential facts are that the appellant and appellee had gone to a dance hall, the Riverview Tavern, together in appellant's car. At the dance were two of their mutual acquaintances, Connie McCool and Jack Knose. Both appellant and appellee had known Jack for about two years and he had dated appellant sporadically for approximately one year. Jack had known Connie for about six months and they had dated. On the night in question, Jack ignored appellant in favor of Connie, much to the chagrin of appellant. Neither appellant nor appellee had consumed any intoxicating beverages. All four young people left the dance between 1:30 and 2:00 A.M., with Connie McCool leaving first, followed by appellant with appellee as a guest passenger and Jack Knose behind them.

The three cars, in the above order, proceeded south on the Lawrenceburg Road in Ohio in order to reach U.S. 50, which they would take home. The Lawrenceburg Road is a two-lane county road, blacktop, 18 feet wide, marked with a dividing line. It is very winding, with quite a few curves, but both appellant and appellee had traveled the road frequently and were familiar with it.

All three cars were traveling at what Connie and appellee called a normal rate of speed for that road, which is somewhere in the area of 45 to 55 miles per hour, although the speed limit was 35 miles per hour. Jack passed the appellant's car and fell in behind Connie about one mile south of the Riverview Tavern. Appellant knew that Jack was following Connie home and she was mad because Jack had shown a marked preference for Connie that evening. Subsequent to Jack passing appellant, both Jack and Connie were driving at a speed of about 50 to 55 miles per hour. After Jack passed her and while she and the appellee were discussing Jack's drawbacks, appellant suddenly accelerated and continued to accelerate (appellee testified that the speedometer read between 80 and 90 miles per hour) as she passed the two other cars despite the repeated warnings of appellee. Appellant had just gotten by the last car by the time she reached the curve and in the curve she apparently lost control and started to spin.

Appellee testified on direct examination as to the latter events and conversations as follows:

'Q. At that particular time and after Jack passed your car tell the jury what you and Wanda were talking about at that time.

'A. Wanda had dated Jack and we were talking in general about what kind of a crumby (sic) heel he was, he treated her badly, he wasn't a very nice boy.

'Q. Was that because he wasn't dating her, on that particular evening, just tell the conversation you had with her?

'A. She was mad, he was at Riverview, and didn't do anything and he was obviously following Connie home, and she knew he was, and she was mad and we were talking about it.'

'Q. I would refer you to the point the officer testified it was three-tenths of a mile north of where the accident occurred, can you tell the jury what happened just as you approached the stone bridge and what happened from that time on?

'A. We went over the stone bridge and Jack's and Connie's car was in front, and we were going fast, I said, 'Wanda, slow down.' She went ahead after I said, Wanda, slow down. I can see the road and the car goes into a slide and I put my hand over my eyes and we hit, I guess she lost control.

'Q. Back up, when she stepped down on the gas, when did you tell her slow up?

'A. We were going along I looked at the speedometer I though (sic) you are going too fast, I said, 'Slow down, my God, Wanda, what do you think we are doing.'

'Q. Did you say anything like 'don't pass'?

'A. I could have, after you get past a certain point there is no place to go except up, and we hit the curve, and I said, 'Wanda, slow down.'

'Q. Did you do anything or say anything as you started around Jack, that is when you begin (sic) telling her to slow down?

'A. Yes.

'Q. Did she slow down?

'A. No, she went on.

'Q. Same speed or a little faster?

'A. I don't know, she passed Jack and Connie, and I told her, I don't know how many times to slow down.

'Q. Did she slow down?

'A. No.

'Q. She kept on going?

'A. After I slid down in the seat and put my hands over my eyes I don't know.

'Q. Did she apply the brakes at any time?

'A. I don't know.

'Q. Did you feel the car slow down?

'A. I didn't feel anything, it started around and around and hit.

'Q. Did your car spin around?

'A. Yes.

'Q. Now you did say to slow down from this point at the bridge to where you hit?

'A. Yes, I don't know how many times.'

The issue presented by this appeal is whether all the facts and inferences drawn therefrom demonstrate a 'perverse motive' or 'mental attitude adverse to the welfare of the guest' so as to meet the mental requirement for wanton misconduct within the meaning of the Indiana Guest Statute (Burns' Statute Annotated § 47--1021).

The essential elements of wanton misconduct as set forth by our Supreme Court in Clouse v. Peden, 243 Ind. 390, 391, 186 N.E.2d 1 (1962), read as follows:

'To be guilty of wanton misconduct within the meaning of the statute, the driver must (1) be conscious of his misconduct; (2) be motivated by a desire to assert himself or his interests above or beyond, or in reckless indifference for, the safety of his guest, and (3) he must do so knowing that his conduct subjects them to a * * * probability of injury.'

This court in Bruckner v. Jones, Ind.App., 255 N.E.2d 535, 543 (1970), in a review of Indiana guest cases, further enunciated guidelines to be used in evaluating such cases when it stated:

'a. An error of judgment or a mistake standing alone, on the part of the host, will not amount to wanton or wilful misconduct.

b. The host must have manifested an attitude adverse to the guest, or of 'perverseness', in that the host must have shown he was indifferent to the consequences of his conduct.

c. The entire course of conduct of the host leading up to the accident must be considered.

d. The host must have had actual knowledge of danger confronting the guest.'

The perverse attitude required of the host was defined by this court in Mazza v. Kelly, Ind.App., 258 N.E.2d 171 (1970), as follows:

'Appellant asserts that, inherent to the rule as above stated, there must be some 'perverse motive' on the part of the driver, such as malice or wilfulness, as related to the probability of injury to his guests, and that no such motive existed on the part of this appellant. We concur in the fact 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. However, as heretofore stated, this does not mean that the wrongful conduct of the driver must be motivated by malice, ill will, or intent to injure. Our statute (§ 47--1021, supra), uses the words 'wanton or wilful' in the disjunctive. Therefore, it is sufficient to meet the condition of the statute if the misconduct is wanton.'

The appellant asserts that, as in the Mazza case, the facts here presented fail to disclose the requisite mental element, 'perverseness,' and relies heavily on the Brueckner case, supra, where this court found, as a matter of law, that said element was not present.

Judge Sullivan, in differentiating between the factual situations that existed in Mazza and Clouse from those in Brueckner, stated:

'That decision, Brueckner v. Jones (1970), Ind.App. (20 Ind.Dec. 315), 255 N.E.2d 535, reversed a judgment by the trial court in favor of the guest plaintiff. That case, however, is clearly distinguishable from the factual situation here presented. The Brueckner decision distinguished Clouse v. Peden, supra, as follows at p. 543,

'The guest in Clouse had asked the driver to slow down and reminded the driver of a prior accident at the same intersection. The guest continued to plead with the driver to slow down. The driver approached the intersection without applying his brakes.'

and relied upon a factually similar case, Tuttle v. Reid (1966), 247 Ind. 375 (8 Ind.Dec. 250), 216 N.E.2d 34. Judge Sharp noted that the guest statute test contemplates and requires establishment of a mental attitude on the part of the driver with respect to both his driving and his guest, which is adverse to the welfare of his guest. In the Brueckner case it was held that there was a total lack of evidence concerning the existence of such mental attitude.

We hold that there was sufficient evidence from which a jury might properly find such mental attitude to be here present. It is the evidence of warnings, repeatedly and by not one,...

To continue reading

Request your trial
8 cases
  • Cheek v. Hamlin
    • United States
    • Indiana Appellate Court
    • January 20, 1972
    ...'These same three elements have been cited with regularity by the Indiana Courts through the years. Schwing v. McKibbin, (1970) Ind.App.; 264 N.E.2d 629; Brueckner v. Jones, (1970) Ind.App.; 255 N.E.2d 535; Mazza v. Kelly, (1970) Ind.App.; 258 N.E.2d 171; Tuttle v. Reid, (1966), 247 Ind. 37......
  • Slusher v. State
    • United States
    • Indiana Appellate Court
    • June 30, 1982
    ...* * * " '"See also: Brueckner v. Jones (1970), Ind.App., 255 N.E.2d 535, 20 Ind.Dec. 315 (transfer denied); Schwing v. McKibbin (1970), Ind.App., 264 N.E.2d 629, 24 Ind.Dec. 35 (transfer denied); Mazza v. Kelly (1970), Ind.App., 258 N.E.2d 171, 21 Ind.Dec. 313." ' " (emphasis added)McClure ......
  • McClure v. Austin, 372A133
    • United States
    • Indiana Appellate Court
    • June 15, 1972
    ...* * *" See also: Brueckner v. Jones (1970), Ind.App., 255 N.E.2d 535, 20 Ind.Dec. 315 (transfer denied); Schwing v. McKibbin (1970), Ind.App., 264 N.E.2d 629, 24 Ind.Dec. 35 (transfer denied); Mazza v. Kelly (1970), Ind.App., 258 N.E.2d 171, 21 Ind.Dec. In Brueckner v. Jones, supra, Ind.App......
  • Barrow v. Talbott
    • United States
    • Indiana Appellate Court
    • February 25, 1981
    ...complaints or warnings about his driving. Jones v. Motley et al. (1974), 160 Ind.App. 21, 309 N.E.2d 173; Schwing v. McKibbin (1970), 148 Ind.App. 222, 264 N.E.2d 629. Prior to overtaking the Wilson automobile Debra began swerving her car along a winding portion of the road. She was angry a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT