Allison v. Ely and Easter

• Citation: 159 N.E.2d 717
• Decision Date: 24 June 1959
• Docket Number: No. 18936,18936
• Parties: John ALLISON, Appellant, v. Charles ELY and Marie Easter, Appellees. *
• Court: Court of Appeals of Indiana

Page 717

159 N.E.2d 717

John ALLISON, Appellant, v. Charles ELY and Marie Easter, Appellees. ^*

No. 18936.

Appellate Court of Indiana, In Banc.

June 24, 1959.

Dissenting Opinion June 30, 1959.

Rehearing Denied Sept. 18, 1959.

William S. Isham and James A. Gardner of Fraser & Isham, Fowler, for appellant.

N. George Nasser, Hansford C. Mann, Terre Haute, Karl M. Jacobs, Fowler, for appellees.

AX, Judge.

The basic part of the decision in this case calls for the construction of § 47-1021, Burns' 1952 Replacement, generally termed the 'Guest Act', which reads 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 therefore, 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 appellee Charles Ely was seriously injured while riding in an automobile driven by the appellant John Allison on U. S. Highway 52 in Benton County, Indiana, on November 25, 1953. Claiming that he had paid for his transportation in the Allison car from Oxford, Ohio, to Downers Grove, Illinois, and charging that the accident which caused his injuries was due to the negligence of both the appellant John Allison and the appellee Marie Easter, the appellee Charles Ely brought and prosecuted this suit as the result of which he recovered judgment, following a jury's verdict, in the sum of $15,500 against both the appellant John Allison and the appellee Marie Easter. In addition to the appellee Ely and the appellant Allison, Harlan Knosher, Kate Smith and Barbara Allison, a sister of the appellant Allison, were in the car at the time of the accident. All five of them were students at Miami University in Oxford, Ohio, and were on their way home to spend the Thanksgiving holiday. They all lived in the suburban Chicago area.

The injuries to the appellee Charles Ely occurred as a result of a collision of the car in which he was riding, which at the time was being driven by the appellant Allison. From the record it appears that the appellant Allison was following the car driven by the appellee Easter. In attempting to pass the Easter car, Allison started around without blowing his horn until he was about fifty feet from the Easter car. When the front wheels of the Allison Car were alongside the rear end of the Easter car, the Easter car turned into its left lane, attempting to pass a car ahead of it and thereby struck the appellant's car with its right rear bumper. Appellant then turned his car to the left and it went off the road and collided violently with a culvert abutment situate immediately off of the pavement, thus injuring the appellee Ely.

Appellant assigned as error the overruling of his motion for a new trial, wherein he urges the following causes:

a. That the verdict is not sustained by sufficient evidence.

b. That the verdict is not sustained by sufficient evidence and is contrary to law.

c. Errors of law occurring at the trial as follows:

(1) Error in overruling the motion for a directed verdict made by the defendant John Allison at the close of all the evidence in the cause.

(2) Error in giving each instruction number 13 and 14 tendered by the plaintiff.

(3) Error in refusing each instruction number 14, 15, 16 & 22 tendered by defendant John Allison.

The appellee Easter does not appeal from the judgment, and hence the judgment for the appellee Ely against the appellee Easter must stand.

The appellant contends that there is insufficient evidence in the record to support a finding that the appellee Ely was being transported for pay at the time of the accident and that without such a valid finding there can be no recovery since no claim is made that his injuries were caused by wilful and wanton conduct on the part of the appellant. This contention is based on the above mentioned 'Guest Act'.

The facts most favorable to the appellee Ely bearing on this question may be summarized as follows: In 1953 some ten days before the accident in controversy, Miami University had sponsored what it called 'Dad's Day', at which time the parents of students, particularly the fathers, were invited to the University to enjoy a football game and other festivities. The parents of both the appellant and the appellee Ely attended said 'Dad's Day' ceremonies and met at the Sigma Nu house to which fraternity their respective sons John Allison and Charles Ely belonged. The Allisons lived in Naperville and the Elys in Downers Grove, both towns being a few miles west of Chicago. Each set of parents had driven to Oxford in their respective automobiles. The parents were not 'social' friends, having never visited each other in their own homes. While conversing in the fraternity house sometime during the 'Dad's Day' weekend it was agreed between the Allison parents and the Ely parents and their two sons that Mr. & Mrs. Allison would go home with Mr. 3 Mrs. Ely in the Ely automobile leaving the Allison car in Oxford for the use of John Allison, his sister Barbara, and Charles Ely as a means of transportation in getting home for the approaching Thanksgiving holiday. Speaking of this agreement the appellant testified as follows:

'Q. State whether or not at that time it was decided as an economy measure that your parents would return with Mr. Ely's parents and leave the automobile for you and Charles Ely to use to save train expense? A. Yes, that is right. They decided that would be a good move so that we could go back, my sister and Chuck and Harley and Kate, but I might add at that time we had no understanding with either Kate or Harley, this was an afterthought, after that weekend, because they did live in the area of my home town.

'Q. It was the intention of you and Mr. Ely was it, to share the expenses of the trip? A. Well, there was nothing said, nothing previously, no pre-planning or figuring out amounts, no.

'Q. Would you say it was just assumed? A. Yes, it always has been, when you go with someone; it is not a pre-requisite.

'Q. Who all was present, Mr. Allison, when your parents and Mr. Ely's parents made the decision to go back in the Ely automobile and leave the, your parents' automobile there for you fellows? A. Both of our parents and Charles and I; all I remember the ones concerned at that time.

'Q. Do you recall just what was said in that conversation? A. Well, we had, we were just sitting around I can't recall if it was the same or some other afternoon, sometime before both the parents left, that it would be advantageous to leave the one car for transportation home. Economically and time-saving, and as far as alleviating the fighting and the connections and the disadvantages of making these connections, and time and distance involved, and making sure that my sister didn't have to fight the holiday traffic and congestion on the train with her luggage and so on.

'Q. Then if I understand the situation there correctly, that by the Elys taking your mother and father back to Naperville and leaving the automobile of your parents at Oxford, it was agreed between the six of you, that is, your parents, Ely's parents, and you and Charles Ely, that it would be a saving in both time and money in doing it in that manner? A. Yes, and convenience.

'Q. You did make a savings, you and your sister, by getting to go home in the automobile rather than by train, bus, taxicab, and commuter's train, didn't you? A. I could answer that by saying that could be a part of it, that was not the main reason for having that car there and having to go home in it. There were other reasons. One was my sister was not well, she had mononucleosis, I think that is a common college affliction in that you get very run down, I believe the white corpuscles take over the red ones, and she had been weak and restricted in her activities. My parents did not want her fighting this holiday traffic, especially on this rambling cattle train we had to take; that was one of the reasons; convenience was a reason; economy of time was another we could get home much sooner; so expenses may be part of it but again, just a part.

'Q. In other words there were other values you considered even more than the money? A. Much more, much more.'

The appellee Ely contends that the foregoing evidence is sufficient to warrant the jury in finding that at the time and place of the accident in which he received the injuries complained of he was being transported by the appellant for pay because the agreement, which made his presence in the car possible, provided: (1) transportation for appellant's parents from Oxford, Ohio, to Naperville, Illinois; (2) transportation for appellant's sister from Oxford to Naperville, Illinois; (3) saving of train fare, bus and taxicab fare for appellant and his sister; (4) avoidance of discomfort on crowded train; (5) saving of time and convenience; and (6) a contribution from appellee to apply on purchase of gasoline.

It seems to us that the evidence in this case, bearing on the question of the appellee Ely's status in the automobile at the time on the accident, together with all reasonable inferences to be drawn therefrom, adds up to this: Allison Senior agreed to leave his car in Oxford, Ohio, in order to furnish his son John, his daughter Barbara and Ely Senior's son Charles a means of transportation home for the Thanksgiving holidays. In return for so doing, Ely Senior agreed to take Allison Senior and his wife home in the Ely car. Downers Grove, the home of the Allisons, was approximately eight miles west of Naperville, the home of the Elys, so that by taking the Allisons home the Elys had to drive approximately 16 miles further than they would have driven if they had not agreed to take the Allisons home. John Allison and Charles Ely...