Bedwell v. De Bolt

• Decision Date: 08 October 1943
• Docket Number: 27910.
• Citation: 50 N.E.2d 875,221 Ind. 600
• Parties: BEDWELL v. DE BOLT.
• Court: Indiana Supreme Court

50 N.E.2d 875

221 Ind. 600

BEDWELL v. DE BOLT.

No. 27910.

Supreme Court of Indiana

October 8, 1943

Appeal from Wells Circuit Court; John F. Decker, Judge.

Roscoe D. Wheat, of Portland, and Francis A. Shaw of Muncie, for appellant.

Hubert R. McClenahan, of Decatur, and Moran & Abromson, of Portland, for appellee.

SHAKE Judge.

This is an action for personal injuries suffered by the appellee when an automobile in which she was riding collided with a locomotive at a public highway crossing. There was a jury trial resulting in a verdict and judgment against the appellant for $3,000.

The first question for consideration is whether the trial court committed reversible error in overruling a demurrer to the appellee's amended complaint upon which the action was tried. The memorandum attached to the demurrer charged that the facts alleged in the amended complaint amounted to nothing more than negligence, and were not sufficient to charge 'wanton or wilful misconduct' within the meaning of Chapter 259, Acts 1937, § 47-1021, Burns' 1940 Replacement, § 11265, Baldwin's Supp. 1937, upon which the action was predicated.

The amended complaint alleged that the appellee was the guest of the appellant in an automobile operated by him and that without stopping, looking, or slackening his speed, the appellant drove his automobile upon a railroad crossing, with which he was familiar, at 40 miles per hour in the nighttime, when a locomotive was proceeding over said crossing at 2 miles per hour and when a flasher signal displaying red lights was in operation and clearly visible to him.

Before we would be justified in reversing the judgment for error in overruling the demurrer, we would have to determine from the whole record that the appellant was prejudiced thereby, § 2-3231, Burns' 1933, § 505, Baldwin's 1934. There is evidence in the record, which was admitted without objection, to the effect that the appellant was warned of the danger which confronted him by the other occupants of the automobile in time sufficient to have avoided the accident, but that he made no effort to stop the automobile or reduce its speed. These facts must be considered with those alleged in the amended complaint in determining whether the appellant was harmed by the ruling on his demurrer. Pittsburg, etc., R. Co. v. Rushton, 1929, 90 Ind.App. 227, 148 N.E. 337, 149 N.E. 652. Fidelity & Cas. Co. of N.Y. v. State ex rel. McWhir, 1942, 110 Ind.App. 507, 32 N.E.2d 102. The complaint might have been amended after trial to conform to the proof.

The original 'Guest Statute' of this state provided that no guest should have a right of action against the owner or operator of a motor vehicle, unless the accident 'shall have been intentional on the part of such owner or operator or caused by his reckless disregard of the rights of others.' Acts 1929, Ch. 201, p. 679. That act was construed as relieving owners and operators from liability caused merely by failure to exercise ordinary care. Coconower v. Stoddard, 1932, 96 Ind.App. 287, 182 N.E. 466. The present act amended the act of 1929 to read 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 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.' Acts 1937, Ch. 259, § 47-1021, Burns' 1940 Replacement, § 11265, Baldwin's Supp.1937.

The question then arises as to the meaning of the words 'wanton and wilful misconduct', as used in the above act. On this phase of the case we find ourselves in complete agreement with what was said by Blessing, C. J., when this case was before the Appellate Court of Indiana (47 N.E.2d 176, 181.) We, therefore, adopt as our own the following language employed by him:

'Blashfield has defined 'wanton misconduct' as 'the intentional or wanton disregard of the safety of others, and is manifested by conduct which is of such a character as to indicate the autoist's indifference to the consequences to his acts.' The same author defines 'wilful misconduct' as 'the intentional doing of something which should not be done, or intentional failure to do something which should be done, in the operation of the automobile, under circumstances tending to disclose the operator's knowledge, express or implied, that an injury to the guest will be a probable result of such conduct.' Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, vol. 4, § 2322, pp. 109 and 110.

'Berry, in his work, defines 'wanton conduct' as follows: "Wantonness' * * * is the conscious doing of some act or the omission of some duty with knowledge of existing conditions, and conscious that, from the act or omission, injury will likely result to another.' Berry, Automobiles, Seventh Ed., Section 2.340. There would seem to be little, if any, difference in the definition of 'wantonness' by Berry and the definition of 'wilfulness' by Blashfield. While the word 'wilful' may be used in a broader sense than the term 'wanton', we are of the opinion that the meaning of the two words, as used in the Guest Statute, is closely synonymous.

'In determining what constitutes a 'wilful' or 'wanton' act, we subscribe to the view that it is not necessary to prove that defendant deliberately intended to injure the plaintiff; it being sufficient if it is shown that, indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequences of his act was injury to the plaintiff. Baines v. Collins, 1942, 310 Mass. 523, 38 N.E.2d 626, 138 A.L.R. 1123. See, also, the Restatement of Law on Torts, § 500, page 1293. And further, acts such as exhibit a conscious indifference to consequences, make a case of constructive or legal wilfulness. Kahan v. Wecksler, 1938, 104 Ind.App. 673, 12 N.E.2d 998; Jeneary v. Chicago & I. Traction Co., 1923, 306 Ill. 392, 138 N.E. 203, 206; Reell v. Central Illinois Electric & Gas Co., 1942, 317 Ill.App. 106, 45 N.E.2d 500. 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. Murphy v. Snyder, 1939 63 Ohio App. 423, 27 N.E.2d 152; Bartolucci v. Falleti, 1942, 314 Ill.App. 551, 41 N.E.2d 777. Ill will is not a necessary element. Bernier v. Illinois Cent. R. Co., 1921, 296 Ill. 464,...