Andert v. Fuchs

• Decision Date: 31 October 1978
• Docket Number: No. 3-377A69,3-377A69
• Citation: 381 N.E.2d 1081
• Parties: William F. ANDERT and Cynthia R. Andert, Appellants-Plaintiffs, v. Richard H. FUCHS, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1081

381 N.E.2d 1081

William F. ANDERT and Cynthia R. Andert, Appellants-Plaintiffs, v. Richard H. FUCHS, Appellee-Defendant.

No. 3-377A69.

Court of Appeals of Indiana, Third District.

Oct. 31, 1978.

George P. Roberts, South Bend, for appellants-plaintiffs.

John J. Lorbert, Crumpacker, May, Searer, Oberfell & Helling, South Bend, for appellee-defendant.

STATON, Judge.

William and Cynthia Andert, husband and wife, brought an action against Richard Fuchs alleging that Fuchs was guilty of wanton or wilful misconduct in operating a pickup truck in which William Andert was a passenger, and that, as a result of such misconduct, Andert sustained personal injuries in a vehicular accident. Trial before a jury commenced. At the conclusion of Plaintiffs-Appellants Anderts' case-in-chief, the trial court granted Defendant-Appellee Fuchs' motion for judgment on the evidence under Ind. Rules of Procedure, Trial Rule 50(A)(1). The Anderts appeal.

We reverse, holding that the evidence most favorable to the Anderts establishes a question of fact for the jury to determine whether William Andert's injuries resulted from Fuchs' wanton or wilful misconduct, within the meaning of the Indiana Guests Statute, IC 1971, 9-3-3-1, Ind.Ann.Stat. § 47-1021 (Burns Code Ed.). ¹ The facts presented to the trial court involved the events of December 20, 1974, the day of the accident. William Andert and Richard Fuchs, who both worked for the AM General Corporation, started drinking before noon on December 20, the day before a ten-day Christmas vacation began. They drank hard liquor, including rum, brandy and whiskey, until 3:30 P. M., when their shift ended. After 4:00 P. M., they met with other co-workers at a tavern, where they all drank rounds of beer and played pool until around 7:00 P. M. Fuchs testified that he had drunk five or six beers during that period of time.

After leaving the tavern, Fuchs, Andert and Lanny Thompson decided to drive to an American Legion post in another town. Instead of taking separate cars, the three drove in Fuchs' pickup truck, with Fuchs driving. Lanny Thompson testified that Fuchs was not drunk and was able to drive. However, another co-worker at the tavern, Gary Able, testified that Fuchs was "pretty loaded" at the tavern.

At that time of the evening, snow was falling, with about two inches of snow on the ground. The roads were icy, slick and wet. Fuchs was traveling south on U.S. 31, driving at approximately 30 m. p. h. in a 55 m. p. h. zone. He obeyed all traffic signs and stop lights. His vehicle was not weaving in and out of the traffic lane. Andert and Thompson made no complaints about his driving and supplied no warnings.

Fuchs pulled into the passing lane in order to pass another vehicle. At some point, possibly while he was shifting from second to third gear, his truck "took off" to the left and its rear end slid on the road. Fuchs testified that his truck slid against the snow-covered median strip. He testified that he lost control and the truck slid into the northbound lanes of oncoming traffic.

Meanwhile, Bernice Carney was traveling north at about 45 m. p. h. She noticed Fuchs' pickup truck, which was turning in front of her. She jammed on her brakes but was unable to prevent the ensuing collision.

The accident occurred at approximately 7:30 p. m. James Harper, a State Police Officer, found both the pickup truck and the car situated in the northbound lanes, facing east. Officer Harper testified that Fuchs stated he had been drinking and wasn't sure how the accident had happened. Fuchs said he thought that Carney's car was trying to pass his truck. Fuchs was described as staggering and incoherent; he was unable to gather his thoughts. The officer testified that he thought Fuchs was under the influence of intoxicants.

Because of his injuries, Fuchs was charged only with failure to yield the right-of-way to oncoming traffic, an offense to which he pled guilty.

After Plaintiffs-Appellants Anderts presented their case in chief, the trial court granted Defendant-Appellee Fuchs' motion for judgment on the evidence. The Anderts filed a motion to correct errors requesting a new trial under Ind. Rules of Procedure, Trial Rule 59; their motion was denied.

The issue which we must decide is whether the evidence adduced at trial raised a question of fact which could be resolved only by the jury.

When the Guests Statute applies to a personal injury action, a plaintiff may recover only if he can prove that his injuries were proximately caused by the wanton or wilful misconduct of the owner or operator of the vehicle. IC 1971, 9-3-3-1. Plaintiffs-Appellants William and Cynthia Andert assert that the factual issue of whether Fuchs engaged in wanton or wilful misconduct was raised by a combination of factors: Fuchs' intoxicated state; the hazardous driving conditions; and Fuchs' illegal act of crossing into lanes of oncoming traffic. Defendant-Appellee Fuchs argues that his acts constituted mere errors in judgment. He claims there was not enough evidence of wanton or wilful misconduct to warrant submission of the case to the jury.

When reviewing the trial court's granting of Fuchs' motion for judgment on the evidence, this court may affirm only if we can say that the evidence, as a matter of law, would require reasonable men to conclude that Fuchs' actions did not constitute wanton or wilful misconduct. Cheek v. Hamlin (1972), 150 Ind.App. 681, 277 N.E.2d 620; Mazza v. Kelly (1970),147 Ind.App. 33, 258 N.E.2d 171. In other words, the trial court must have had before it a total lack of evidence or reasonable inferences to be drawn therefrom which would support a finding of wanton or wilful misconduct. Barbee v. McKay (1968), 143 Ind.App. 205, 238 N.E.2d 690. This court applies the rule that the trial court should have left any weighing of the evidence to the jury to determine whether an accident was caused by wanton or wilful misconduct. Cheek v. Hamlin, supra, 277 N.E.2d 620; Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1.

Our Indiana courts have exhaustively discussed the meaning of "wanton or wilful misconduct" in various decisions. Cheek v. Hamlin, supra, 277 N.E.2d 620; Mazza v. Kelly, supra, 258 N.E.2d 171; Brueckner v. Jones (1970), 146 Ind.App. 314, 255 N.E.2d 535; Bedwell v. DeBolt (1943), 221 Ind. 600, 50 N.E.2d 875. One case supplies the following definition:

"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." Becker v. Strater (1947), 117 Ind.App. 504, 72 N.E.2d 580, 581.

In Sausaman v. Leininger (1957), 237 Ind. 508, 146 N.E.2d 414, 418, the Supreme Court added the requirement of:

"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 . . . 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 elements constituting wanton misconduct are met if the driver (1) is conscious of his misconduct; (2) is motivated by reckless indifference for the safety of his guests; and (3) knows his conduct subjects his guests to a probability of injury. Clouse v. Peden, supra, 186 N.E.2d 1; Brown v. Saucerman (1957), 237 Ind. 598, 145 N.E.2d 898. See also Mazza v. Kelly, supra, 258 N.E.2d 171.

Other guidelines a court should apply in its determination include the following:

"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." Brueckner v. Jones, supra, 255 N.E.2d at 543.

Normally, 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 accompanied by excessive speed or a weaving motion has been held to raise a question of fact for the jury's determination. Oliver, supra, 236 N.E.2d 72; Hubblev Brown (1949), 227 Ind. 202, 84 N.E.2d 891; See also Thompson v. Pickle (1963), 136 Ind.App. 139, 191 N.E.2d 53.

On the other hand, in Stillwell v. Adams (1963), 135 Ind.App. 495, 193 N.E.2d 74, Trans. denied, Ind., 194 N.E.2d 806, the court held that defendant's actions constituted mere negligence. In Stillwell, plaintiff and defendant had been drinking beer together. Before the accident, defendant had been driving normally, at a speed below the limit. On making a left turn, he observed the lights of an oncoming car which had been obstructed from view by pillars. He accelerated the speed of the car and it collided with one of the pillars.

In still another case, the court held that defendant's conduct, which included drinking alcohol, constituted nothing more than an error of judgment or mistake. Fielitz v. Allred (1977), Ind.App., 364 N.E.2d 786. However, the evidence in that case differs greatly from that presented in the case at bar. The court noted:

"Although the evidence in the case at bar is uncontradicted that appellee had consumed two or three beers shortly before the accident, the evidence is also uncontradicted that appellee's ability to drive...