Mitchell by Mitchell v. Turner

Decision Date04 November 1985
Docket NumberNo. 3884A231,3884A231
Citation484 N.E.2d 967
PartiesKeith MITCHELL by Natural Father Ralph MITCHELL and Ralph Mitchell, Plaintiffs-Alpellants, v. Curtis TURNER, Roger Turner and Jane Turner, Defendants-Appellees.
CourtIndiana Appellate Court

Saul I. Ruman, Thomas J. Herr, Glenn D. Commons, Saul I. Ruman & Associates, Hammond, for plaintiffs-appellants.

David J. Hanson, Robin D. Pierce, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for defendants-appellees.

GARRARD, Judge.

This action was brought under the Indiana Guest Statute 1 to recover damages for injuries sustained in a collision occurring in Hammond, Indiana. On May 16, 1980, 15 year old Keith Mitchell was a passenger in a car driven by 16 year old Curtis Turner, an acquaintance of Keith's. While Curtis was attempting to negotiate a left hand turn at the intersection of 171st Street and Calumet Avenue in Hammond, his car was struck on the passenger side by a semi-tractor-trailer driven by Larry Dalton. Keith Mitchell suffered severe injuries leaving him a quadriplegic.

Keith Mitchell and his father, Ralph Mitchell (Mitchells) initiated this lawsuit against Curtis Turner and his parents (Turners), alleging that Keith's injuries were proximately caused by the wilful or wanton misconduct of Curtis Turner. There was conflicting testimony presented to the jury as to the speed of Dalton's tractor-trailer and Curtis Turner's car, the distance the tractor-trailer was from the intersection when Curtis Turner attempted to complete the turn in front of it, and the status of the traffic signal regulating the intersection. Keith Mitchell has no memory of the accident. The jury returned a verdict for the Turners.

The Mitchells and Turners both tendered instructions for the jury. The Mitchells' appeal alleges that the trial court committed, in essence, six separate errors regarding either instructions the Mitchells tendered which were rejected or instructions the trial court ultimately used to charge the jury. Before addressing the Mitchells' various contentions it is important to keep in mind the following general rules regarding our review of jury instructions:

(1) Nonmandatory instructions that are given in a case must be considered as a whole and with reference to each other to determine whether the jury was properly instructed. Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73; F.W. Woolworth Co., Inc. v. Anderson (1984), Ind.App., 471 N.E.2d 1249; Drolet, Admtrx. etc. v. Pennsylvania R. Co. (1960), 130 Ind.App. 549, 164 N.E.2d 555.

(2) "If the instructions considered as a whole fully and fairly instruct the jury, error in any particular instruction will not justify a reversal unless it is such as to vitiate the whole charge to the jury. The charge is vitiated only when the instruction is so erroneous that it must be concluded the jurors have been misled as to the law of the case." Spratt v. Alsup (1984), Ind.App., 468 N.E.2d 1059; Wyler v. Lilly Varnish Co. (1969), 146 Ind.App. 91, 252 N.E.2d 824; Drolet, Admtrx. etc., supra.

I.

The Mitchells contend that the trial court erred in giving instruction number 18 which reads:

"The mental attitude of the defendant toward the driving of the motor vehicle and toward the plaintiff is an issue in this case. The law requires the plaintiff to prove by a fair preponderance of evidence that the defendant Curtis Turner had an adverse attitude toward his driving and toward the plaintiff."

The Mitchells contend this instruction is erroneous because it incorrectly states the law by placing upon them the burden of proving that Curtis Turner had an adverse attitude. 2 The Mitchells further argue that the instruction constitutes reversible error because it conflicts with the trial court's instruction number 20, 3 which provides that wanton conduct need not be hostile.

Three elements have been consistently required to establish a case of wanton misconduct under the Indiana Guest Statute. These elements were enumerated by Judge Achor in a concurrence to Brown v. Saucerman (1957), 237 Ind. 598, 145 N.E.2d 898 at 907:

"To be guilty of wanton misconduct within the meaning of the statute (Sec. 47-1021, supra), 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."

See also Andis v. Newlin (1982), Ind., 442 N.E.2d 1106; Clouse, etc. v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1. Additionally, four factors have been established by the Indiana courts as guidelines in the evaluation of a Guest Statute case. These factors are:

"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."

Thrapp v. Austin (1982), Ind.App., 436 N.E.2d 1170; Hershberger v. Brooker (1981), Ind.App., 421 N.E.2d 672; Stauffer v. Lothamer (1981), Ind.App., 419 N.E.2d 203; Gibson v. Estate of Holderbaum (1980), Ind.App., 413 N.E.2d 614; Brueckner v. Jones (1970), 146 Ind.App. 314, 255 N.E.2d 535, 543.

The critical element in a guest case is the mental attitude of the host driver. Gibson v. Estate of Holderbaum, supra. In Gibson, Judge Hoffman carefully analyzed the Supreme Court cases on the subject, concluding that:

"The mental attitude of the host driver is the critical element of a guest case. As stated by the Indiana Supreme Court in Andert v. Fuchs (1979), Ind. at 394 N.E.2d 931, ... 934.

'The gravamen of an actionable guest act case, that distinguishes it from actions not under its purview, is the mental attitude of the host driver, when the misconduct occurs. Such attitude with respect to both his driving and his guest must have been one adverse to the welfare of the guest.

* * *

* * *

Under the foregoing cited cases, it was incumbent upon the plaintiff to produce substantial evidence of probative value that the defendant consciously and intentionally, with a perverse motive, or reckless indifference as to the consequences, operated his vehicle improperly under known existing conditions.' (Citations omitted).

The analysis of the driver's conduct to determine liability was further elaborated in Clouse, etc. v. Peden (1962), 243 Ind. 390, at 397-398, 186 N.E.2d 1, at 4:

'Was appellee's misconduct merely an unthinking or irresponsible act and, therefore, mere negligence or recklessness, or was his conduct consciously performed with a mental attitude which would characterize it as wanton? As noted in Brown v. Saucerman, supra, [237 Ind.] at page 618, 145 N.E.2d at page 906, Webster's New International Dictionary 3rd Ed. defines wanton as follows: '... undisciplined; not susceptible to control; ... Excessively merry or gay; sportive; frolicsome; ... marked by or manifesting arrogant recklessness of justice, or the rights or feelings of others,....' Under the facts heretofore stated a jury may have, with reason, believed that appellee's misconduct was 'wanton' in that he consciously persisted therein in an undisciplined and sportive manner and with arrogant recklessness as to the rights and feelings of his guest who had entrusted himself to appellee's safe keeping.'

Therefore, an adverse attitude need not be hostile or consciously abusive. An undisciplined and sportive manner coupled with arrogant recklessness will satisfy the statutory requirement of wanton misconduct if, under the known existing circumstances, injury will probably result therefrom. It is not necessary to show that the driver is motivated by malice, ill will, or a specific intent to injure. Mazza v. Kelly (1970), 147 Ind.App. 33, 258 N.E.2d 171."

413 N.E.2d at 616.

From the foregoing it is apparent that the adverse attitude or perverseness language has long been applied in cases brought under the Guest Statute in an effort to better define the mental element involved. See Sili v. Vinnedge (1979), 181 Ind.App. 658, 393 N.E.2d 251, 255 (indicating that the adverse attitude or perverseness guideline is essentially the same as the mental element of reckless indifference required under the Guest Statute). See also Clouse v. Peden, supra; Sausaman v. Leininger (1957), 237 Ind. 508, 146 N.E.2d 414; Brueckner v. Jones, supra. Furthermore, the Gibson case clearly indicates that an adverse attitude need not be "hostile." There is then no conflict between the trial court's instructing as to adverse attitude on the one hand and indicating in instruction number 20 that wanton conduct need not be hostile.

The Mitchells attempt to bolster their argument against the adverse attitude instruction with two recent Indiana Supreme Court cases which they contend implicitly did away with the adverse attitude requirement by not discussing it as a necessary element in a guest case. 4 After reviewing these cases, we conclude that this argument is without merit. The Martin v. Roberts, and Andis v. Newlin decisions, supra, n. 3, do not address the adverse attitude or perverseness requirement at all, nor can we say that these decisions are in conflict with that requirement so as to give rise to an overruling by implication. 5 See Roberts v. Chaney (1984), Ind.App., 465 N.E.2d 1154 (in this case decided after the two Supreme Court cases cited by the Mitchells the First District continued the application of the adverse attitude or perverseness language). The trial court's instruction number 18 on adverse attitude is not erroneous. 6

II.

The Mitchells contend that it was error for the trial court to refuse to give their tendered...

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