Barbee v. Frick
Decision Date | 18 March 1965 |
Docket Number | No. 20053,No. 1,20053,1 |
Citation | 139 Ind.App. 43,205 N.E.2d 180 |
Parties | William Frank BARBEE, Appellant, v. William E. FRICK, Jr., by next friend, William E. Frick, Appellee |
Court | Indiana Appellate Court |
[139 INDAPP 44] Peck, Scott & Shine, Anderson, for appellant.
Busby, Davisson, Cooper & Farr, Anderson, for appellee.
The appellee having heretofore filed a motion to affirm judgment, and the ruling on said motion having been withheld until this cause was finally and fully briefed and cause submitted on its merits, said motion is hereby overruled.
This appeal comes to us from the Madison Circuit Court and grows out of an action for damages filed by the appellee, William Frick Jr., by his next friend William Frick against the appellant William Frank Barbee.
The complaint alleged that the plaintiff-appellee was riding as a guest passenger in the automobile operated by the defendant-appellant at a time when it struck a bridge on Indiana Highway 132 which accident resulted in injuries to the plaintiff. The complaint charged that the injuries of the plaintiff-appellee were the proximate result of certain acts of wanton and wilful misconduct committed by the defendant. More specifically the complaint charged:
'Said defendant operated said automobile at an excessively high rate of speed, approximately 90 miles per hour, this being greater than reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.'
[139 INDAPP 45] To the plaintiff's complaint the defendant-appellant filed an answer under rule 1-3 of the Supreme Court of Indiana. Trial was had by jury which returned a verdict for the plaintiff-appellee in the amount of $25,000.00 on which the court entered consistent judgment. The motion for new trial was timely filed and the overruling of the motion for new trial is assigned as the error for our consideration. In the argument portion of his brief the appellant contends that the allegations of the complaint were not proven by substantial evidence showing that the operator of the car consciously and with reckless indifference to the consequences proceeded with his method of driving knowing that if he did so injury to his passenger would probably result. In support of his argument the appellant generally applies several authorities which have been decided by this Court and out Supreme Court in cases dealing with wanton or wilful misconduct.
A careful study of the allegations of the plaintiff's complaint and the evidence adduced in support there of clearly indicates that this case does not involve wilful misconduct but was tried on the theory of wanton misconduct. The general statements of the appellant are therefore not completely applicable to the case before us since wilful misconduct contemplates intentional recklessness or indiffernece and no such theory is involved in this case. In so far as the authorities which he cites turn on the proposition of wilful misconduct they are not applicable to the facts in this appeal.
Where the evidence is in conflict we will not weigh the evidence under an assignment that the verdict is not sustained by sufficient evidence. Stidd v. Dietz (1963), Ind.App., 192 N.E.2d 651, Norman v. Norman (1961), 131 Ind.App. 67, 169 N.E.2d 414. Under assignment, however, that the verdict is contrary to law it is our duty to examine the evidence together with all reasonable inferences which may be drawn therefrom, favorable to the appellee. We must then, after this examination, determine [139 INDAPP 46] whether or not reasonable minded men would have arrived at the same result. Pelkey v. Strom, (1963), Ind.App., 187 N.E.2d 753, Gaut. v. Gaut (1963), 134 Ind.App. 317, 187 N.E.2d 580.
Without burdening the record and unnecessarily lengthening this opinion we feel it wise to set out those portions of the evidence which we fell came within the above rule of law.
Direct examination of Harold Knickerbocker:
'Q. As you were proceeding that way, would you please tell the next time you saw this car?
'A. Well, I glanced in the mirror and the first time I glanced in the mirror, I wasn't sure the car had started up. At that time, I suppose I was 600 or a thousand feet ahead of the car and the next time I glanced in the mirror, the car had started and seemed to be overtaking me quite fast.
'Q. Did you continue to watch this car as it came up behind you in your rear view mirror?
'A. Yes, I did.
'Q. Would you please describe the way the car was driving at that time when you observed it?
'A. Well, it was coming up quite fast. That's the reason it caught my attention and when the car was within range of two or three feet behind me, it pulled out on the opposite side of the road and was coming at a very fast rate of speed. I had mentioned it before the car got to me--that it was coming awful fast.
'Q. Did this car then pass your automobile?
'A. Yes, it did.
'Q. At the time this car passed your car, how fast would you say that you were driving your car?
'A. I was driving at approximately fifty miles an hour.
'Q. After this car passed your car, then what did it do?
'A. It proceeded on down the highway.
'Q. Could you describe the manner in which it proceeded down the highway?
'A. It was a normal passing with the exception of the high rate of speed, which caused me some concern.
'Q. After the car had passed your car, did it continue then in front of you at a reasonable distance or what did it do?
'A. Oh, well, it pulled away very rapidly.
[139 INDAPP 47] 'Q. Could you give an estimate of the speed that this car was driving when it passed you and then went on out in front of you?
Direct examination of Marguerite Knickerbocker:
'
* * *
* * *
'Did the cat stay in front of you?
Direct conditional examination of William Frank Barbee:
[139 INDAPP 48] Direct examination of William E. Frick, Jr.:
* * *
* * *
'Q. Billie, what did you say the next thing was that you felt?
* * *
* * *
In the case of Brown v. Saucerman (1957), 237 Ind. 598, 145 N.E.2d 898, our Supreme Court had before it a case involving excessive speed, a dark night, slick pavement, tires with insufficient tread, and driving on the wrong side of the center line of the highway. With all of these factors before it the Supreme Court said at page 609, 145 N.E.2d at page 902:
'To have been guilty of wanton or wilful misconduct appellant must have intentionally proceeded into the curve with reckless indifference to the consequences, knowing that a condition existed from which, because of his conduct, an injury to his guests would probably result.'
The Court further said on page 610, 145 N.E.2d on page 902:
'* * * it is fundamental that the plaintiff in a civil action must prove the allegations of his complaint by a preponderance of the evidence.'
[139 INDAPP 49] The language of Brown v. Saucerman, supra, was affirmed by our Suprme Court in the case of Clouse, etc. v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1.
In the case of Buroker v. Brown (1960), 241 Ind. 421, 426, 172 N.E.2d 849, 850, the following statement is found:
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Brueckner v. Jones, 1267
...v. Thompson, 132 Ind.App. 261, 175 N.E.2d 44 (1961); Reynolds v. Langford, 241 Ind. 431, 172 N.E.2d 867 (1961); and Barbee v. Frick, 139 Ind.App. 43, 205 N.E.2d 180 (1965). The last word on the subject of wilful or wanton misconduct from our Supreme Court is found in Tuttle v. Reid, 247 Ind......
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Andrews v. McNaughton, 20516
...to find that Appellant's conduct was wilful, or wanton, or both. Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1; Barbee v. Frick (1965), Inc.App., 205 N.E.2d 180. Appellant bases error on the reading to the jury of one instruction tendered by Appellee, and the refusal of the court to gi......