Blair v. May
| Decision Date | 27 February 1939 |
| Docket Number | 16093. |
| Citation | 19 N.E.2d 490,106 Ind.App. 599 |
| Parties | BLAIR v. MAY. |
| Court | Indiana Appellate Court |
Rex S. Embrick, of Kendallville, and Chas. H. Stamm, of Fort Wayne, for appellant.
Barrett Barrett & McNagny, Leigh L. Hunt, Mentor Kraus, and J. A Bruggeman, all of Fort Wayne, for appellee.
This action was brought by the appellee, Gloria Belle May, by her next friend, Forest R. May, against the appellant, Marcus Blair, to recover damages for personal injuries received by the appellee while riding as a guest in an automobile owned and driven by the appellant. The accident, out of which the injuries grew, occurred on the 26th day of May, 1935, at an intersection formed by State Road No. 7, commonly called the Lower Huntington road, situated in Allen County, Indiana, and the Smith road, which intersects said State Road No. 7.
The action was originally filed in the Allen Circuit Court and afterwards the venue was changed to the Noble Circuit Court. A trial by jury resulted in a verdict for the appellee in the sum of $1,800, upon which judgment was duly rendered. A motion for a new trial was filed and overruled and this appeal followed.
The cause was tried in the court below on the issues formed by the appellee's complaint in one paragraph and an answer of general denial. At the close of the evidence the complaint, by leave of court, was amended. The ruling of the court permitting said amendment is not questioned in this appeal.
The appellee alleged in the complaint that the appellant requested her to ride with him as a guest in his automobile on the 26th day of May, 1935; that the appellee was then 11 years old and accepted the appellant's invitation to ride as a guest in his automobile, and for that purpose entered into and rode in the rumble seat thereof; that at such time two other adult persons rode in the front seat with the appellant; that an intersection was formed by State Road No 7, commonly called the Lower Huntington road, which ran in an easterly direction, with a north and south highway, commonly known as the Smith road, all in Allen County, Indiana; that the appellant approached such intersection from the west on State Road No. 7, traveling in an easterly direction, at a high, dangerous, reckless and wanton speed of seventy miles per hour and in a reckless disregard of the rights of others including the appellee, in that he operated such automobile at said excessive and dangerous rate of speed with two adult passengers in the front seat with him and without paying any attention to where he was going or keeping any lookout for other traffic which might be approaching said intersection. At the close of the evidence as previously mentioned, the court permitted the appellee to amend her complaint by interlineation by inserting the following: "And in that the defendant, after seeing another automobile approaching and entering said intersection in front of him, operated his said automobile into said other automobile without abating said speed of seventy miles per hour and without making any effort to avoid a collision with said automobile." The appellee further alleged that at said time and place another automobile approached said intersection from the north on said Smith road; that the two automobiles collided on the intersection and as a direct and proximate result thereof the appellee was thrown from such automobile and received permanent injuries, including a skull fracture, and remained unconscious for approximately five days; that the appellee's left arm was fractured and that her right chest was crushed, accompanied by pulmonary hemorrhages resulting in a collapse of the right lung, and by reason of such injuries was compelled to spend one month in a hospital and four months under the care of a physician and suffered much pain and agony, all to her damage in the sum of $12,000.
A motion to make the complaint more specific was filed and overruled, followed by a demurrer which was likewise overruled, but these rulings of the court are not questioned in this court. The answer of general denial was then filed. Trial followed on the above issues resulting as heretofore stated.
The appellant in his brief has expressly waived each specification in the assignment of error except the sole one that the court erred in overruling the motion for a new trial. The causes or grounds of that motion which are presented to this court are that the verdict of the jury is contrary to law; is not sustained by sufficient evidence; alleged error in the giving to the jury of instruction number 6 tendered by the appellee and in the refusal of the court to give each of instructions numbered 5, 10 and 12 tendered by the appellant.
At the outset it is to be noted that this cause of action is governed by the so called automobile guest statute of 1929. See Acts 1929, § 1, Chapter 201, page 679, Burns' 1933, § 47-1021, Sec. 11265 Baldwin's Ind.St.1934. The above act was amended by the Act of 1937, § 1, Chapter 259, page 1229, but the cause of action herein originated in an accident occurring May 26, 1935. It was tried before the said Act of 1937 became effective. This last mentioned Act does not govern this cause.
Section 1 of the said Act of 1929, supra, which is the section applicable herein, is as follows: "No person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator, for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his reckless disregard of the rights of others."
The complaint among other things charged "that while the defendant was so operating said automobile he approached the intersection of State Road Seven (7) and the Smith road at the high, dangerous, reckless and wanton speed of seventy (70) miles per hour; that at said time the defendant operated his automobile in a reckless disregard of the rights of others, including the plaintiff, in that he operated said automobile at said excessive and deadly rate of speed with two (2) adult passengers in the front seat with him and without paying any attention to where he was going or keeping any lookout for other traffic which might be approaching said intersection.
"Plaintiff further alleges and says that...
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