Andert v. Fuchs

• Decision Date: 25 September 1979
• Docket Number: No. 979S261,979S261
• Citation: 394 N.E.2d 931,271 Ind. 627
• Parties: William F. ANDERT et al., Respondents-Appellants, v. Richard H. FUCHS, Petitioner-Appellee.
• Court: Indiana Supreme Court

Page 931

394 N.E.2d 931

271 Ind. 627

William F. ANDERT et al., Respondents-Appellants, v. Richard H. FUCHS, Petitioner-Appellee.

No. 979S261.

Supreme Court of Indiana.

Sept. 25, 1979.

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

John J. Lorber, May, Searer, Oberfell & Helling, South Bend, for petitioner-appellee.

ON PETITION TO TRANSFER

PRENTICE, Justice.

This case is before us upon the petition of Defendant (Appellee) to transfer the cause from the Court of Appeals, Third District, the decision and opinion of that Court being published at 381 N.E.2d 1081.

Plaintiffs (Appellants), William and Cynthia Andert (husband and wife), brought an action against the defendant alleging that he was guilty of wanton or wilful misconduct in operating a pickup truck in which the plaintiff, 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' case-in-chief, the trial court granted Defendant's motion for judgment on the evidence under Indiana Rules of Procedure, Trial Rule 50(A)(1).

On appeal, the Court of Appeals reversed, holding that the evidence most favorable to the Plaintiffs established a question of fact for the jury to determine whether William Andert's injuries resulted from Defendant's wanton or wilful misconduct, within the meaning of the Indiana Guests Statute, Ind.Code 1971, § 9-3-3-1, Ind.Ann.Stat. § 47-1021 (Burns Code Ed.), which is as follows:

"Guest of owner or operator Right to Damages. 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 therefor, 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 decision of the Court of Appeals, however, contravenes a ruling precedent of this Court, i. e., McCague v. N.Y.C. & St. L. R. Co., (1947) 225 Ind. 83, 71 N.E.2d 569. Accordingly, Defendant's petition to transfer is now granted, and the decision and opinion of the Court of Appeals, Third District, are hereby vacated.

The evidence presented, when viewed most favorably to the plaintiffs, was as follows:

Plaintiff, William Andert, Defendant and several co-workers had been drinking hard liquor and beer for several hours at a tavern. Andert, the defendant and a companion, Thompson, left the tavern and decided to drive to another town to continue their party. They departed in Defendant's pickup truck at about 7:00 p. m., with the defendant driving.

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. Defendant was traveling south on U.S. 31, driving at approximately 30 miles per hour in a 55 mile per hour 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.

Defendant turned 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 miles per hour. She noticed the pickup truck, which was turning in front of her. She applied 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. Defendant was described as staggering and incoherent; he was unable to gather his thoughts. The officer testified that he thought Defendant was under the influence of intoxicants. There was other testimony that the defendant was not intoxicated, but for purposes of this review, we must assume that he was.

"To hold one guilty of 'wilful' or 'wanton' conduct, it must be shown that he was conscious of his conduct and with knowledge of existing conditions that injury would probably result, and with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some duty which produced the injuries." Bedwell v. DeBolt, (1943) 221 Ind. 600, 607, 50 N.E.2d 875, 878.

" * * * We concur in the fact that to constitute 'wilful 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." Sausaman v. Leininger, (1957) 237 Ind. 508, 514, 146 N.E.2d 414, 418.

The above was quoted with approval in Reynolds, Admtrx. etc. v. Langford, (1961) 241 Ind. 431, 172 N.E.2d 867, wherein we held that the trial court properly directed a verdict in favor of the host-driver defendant, upon evidence that he operated his automobile at a speed of from 50 to 60 miles per hour on a "blacktop" surfaced street in a "drizzling rain" and entered a clearly visible and well marked intersection, without stopping, into the path of an oncoming vehicle traveling upon the preferential highway.

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. Clouse, etc. v. Peden, (1962) 243 Ind. 390, 186 N.E.2d 1.

In Tuttle v. Reid et al., (1966) 247 Ind. 375, 216 N.E.2d 34, the evidence was that the defendant host was exceeding the speed limit by ten miles per hour, laughing and talking with her guests, and failed to observe a "stop" sign and another vehicle approaching the intersection, on the preferential street, thereby causing the collision. We held that there was a "total lack of evidence as to any Mental attitude on the part of the driver which was adverse to the welfare of the guest or which might...