Andis v. Newlin

Decision Date29 December 1982
Docket NumberNo. 1082S385,1082S385
PartiesDale M. ANDIS and Pamela Jane Andis, Appellants, v. David Roy NEWLIN, Appellee.
CourtIndiana Supreme Court

DeBRULER, Justice.

This is an appeal from a judgment of the Orange Circuit Court in a personal injury case. The claim was prosecuted below by appellants Andis, father and minor daughter, on the basis of injuries allegedly produced as a result of appellee's wanton and wilful misconduct, a claim governed by the Indiana Guest Passenger Statute. Ind.Code Sec. 9-3-3-1. The judgment was for the defendant-appellee, Newlin.

This appeal was initiated in the Court of Appeals which affirmed the judgment summarily on motion of appellee because of a failure of the record of proceeding to evidence that the transcript of the evidence given at trial was filed with the clerk of the trial court and made part of the record as required by Ind.R.App.P. 7.2(A). The action of the Court of Appeals has been challenged before us in a petition to transfer. In Dahlberg v. Ogle, (1977) 266 Ind. 524, 364 N.E.2d 1174, this Court held that compliance with the rule was satisfied by a statement in the judge's certificate that the transcript "is now filed with said Clerk and made a part of the record herein." In that case there was no file stamp, order book entry, or statement in the certificate of the clerk from which to infer filing. Here, there is no file stamp of the clerk of the trial court, order book entry, or statement in the judge's certificate to support filing, however, the clerk's certificate states that the transcript was signed and allowed by the trial judge before it was filed in the cause all as reflected by the records of the court. This statement was, like the statement of the judge considered in the Dahlberg case, a minimally sufficient evidence of compliance with the rule. The petition to transfer is therefore granted, and in exercise of our inherent jurisdiction to so do, we retain the appeal for purposes of final resolution.

The trial below was to the court. After hearing the evidence of the parties, the court took the case under advisement and later rendered his judgment for the defendant. He concluded that the evidence at the trial together with all reasonable inferences to be drawn therefrom failed to establish wanton and wilful misconduct on the part of the defendant. The issue in the motion to correct errors and in this appeal is whether the decision of the trial court was contrary to the evidence. Ind.R.Tr.P. 59(A)(4).

In a civil case such as this the burden of proof rests with the plaintiff to establish the elements comprising his claim by a preponderance of the evidence. In a trial to the court the judge hearing the case is the sole judge of the weight of the evidence and the credibility of the witnesses. Due deference to the fact-finding function of the trier of fact requires that a judgment against the party bearing the burden of proof be affirmed on appeal unless it can be said that the evidence is without conflict and leads unerringly to a result not reached. Turman v. State, (1979) Ind., 392 N.E.2d 483.

In order for a guest passenger to recover damages from a host driver for injuries resulting from the operation of a motor vehicle it must be shown that at the time of the occurrence the driver knew what he was doing, knew that under the existing conditions his conduct subjected his guests to a high probability of injury, and was motivated by a desire to assert himself or his interests above or beyond, or in reckless indifference for their safety. Clouse v. Peden, (1962) 243 Ind. 390, 186 N.E.2d 1. Evidence of this knowledge and assertiveness was found to exist where the automobile was operated at a greatly excessive rate of speed upon a loose gravel road and into an intersection at which oncoming traffic was obscured and the guest had warned the host driver of the danger. Clouse v. Peden, supra. A case of wanton or wilful misconduct for submission to a jury was determined to have been made out upon proof that a host driver operated his car without stopping, looking, or slackening his speed across a railroad crossing at forty miles per hour at night while the flasher signal was displaying red lights clearly visible to him, and he was warned of the...

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11 cases
  • Medical Licensing Bd. of Indiana v. Ward
    • United States
    • Indiana Appellate Court
    • 9 Junio 1983
    ...instructs us that deciding whether a party is guilty of willful or wanton misconduct is a function of the trier of fact. Andis v. Newlin, (1982) Ind., 442 N.E.2d 1106; Pierce v. Clemens, (1943) 113 Ind.App. 65, 46 N.E.2d Our conclusion is not to intimate that expert testimony is never requi......
  • Scott v. Anderson Newspapers, Inc., 4-583A158
    • United States
    • Indiana Appellate Court
    • 29 Abril 1985
    ...to law, that is, the evidence reasonably leads to but one conclusion and the opposite conclusion has been reached below. Andis v. Newlin (1982), Ind., 442 N.E.2d 1106; Chico Corp. v. Delaware-Muncie Bd. of Zoning Appeals (1984), Ind.App., 466 N.E.2d 472; Ridenour v. France (1982), Ind.App.,......
  • Mitchell by Mitchell v. Turner
    • United States
    • Indiana Appellate Court
    • 4 Noviembre 1985
    ...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 court......
  • Viccaro v. City of Ft. Wayne
    • United States
    • Indiana Appellate Court
    • 15 Junio 1983
    ...not weigh evidence, and will sustain the verdict if there is evidence of probative value favorable to the judgment. Andis v. Newlin, (1982) Ind., 442 N.E.2d 1106, 1108; Glen Gilbert Const. Co., Inc. v. Garvish, (1982) Ind.App., 432 N.E.2d 455, 458; Travis v. Hall, (1982) Ind.App., 431 N.E.2......
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