Buroker v. Brown

• Decision Date: 09 March 1961
• Docket Number: No. 30071,30071
• Parties: Adam E. BUROKER, Appellant, v. Herbert G. BROWN, Appellee.
• Court: Indiana Supreme Court

Page 849

172 N.E.2d 849

241 Ind. 421

Adam E. BUROKER, Appellant, v. Herbert G. BROWN, Appellee.

No. 30071.

Supreme Court of Indiana.

March 9, 1961.

Dillon & Volstad, Symmes, Fleming & Symmes, Indianapolis, for appellant.

James D. Acher, Franklin, Smith & Yarling, Robert S. Smith and Richard W. Yarling, Indianapolis, for appellee.

ACHOR, Judge.

This case comes to us on petition to transfer from the Appellate Court, under § 4-215, Burus' 1946 Repl. ¹

As cause for transfer, appellee asserts that the opinion of the Appellate Court contravenes the ruling precedent of this court, as stated in the case of Brown v. Saucerman, 1957, 237 Ind. 598, 145 N.E.2d 898, and Bedwell v. DeBolt, 1943, 221 Ind. 600, 50 N.E.2d 875, and that the opinion of the Appellate Court erroneously decided a new question of law in this: that the driving of an automobile at a sustained speed of 85 to 90 miles per hour under the attending circumstances in the case did not constitute wanton or wilful misconduct within the provisions of § 47-1021, Burns' 1952 Repl. [Acts 1937, ch. 259, § 1, p. 1229.] This court has accepted transfer on the grounds above stated.

Appellee suffered severe injury while riding in an automobile operated by appellant. Appellee's complaint for damages was in two paragraphs. In the first paragraph, appellee alleged he was a passenger-for-hire and that his injury occurred as a result of the negligent operation of the automobile of the appellant. The second paragraph alleged that appellee was a guest in the automobile and that the appellant drove such automobile in a wanton and wilful manner, resulting in the appellee's injury. The cause was submitted to a jury, which returned a verdict in favor of appellant on the first paragraph of complaint, and in favor of the appellee on the second paragraph. Demages were assessed in the sum of $25,000. This appeal followed.

The only error assigned and argued here on appeal, is that the verdict of the jury is not sustained by sufficient evidence.

The facts in evidence in support of the verdict are as follows: The appellant Buroker, the appellee Brown, and a third party, Bogart, were serving in the Armed Forces of the United States at Fort Knox. Sometime prior to January 15, 1955, appellee and Bogart made arrangements with appellant to drive them to their home in Ohio.

At the time of the accident with which we are here concered, appellant was driving his car, which was a 1953 Chevrolet, at a point about 60 miles northeast of Louisville, on Indiana State Road 3. All three of the young men were riding in the front seat. The accident occurred about 2:15 p. m. Appellee had been dozing most of the time but woke up when they were goint through the town of Deputy, Indiana. There he looked at the speedometer which registered a speed of around 85 to 90 miles per hour. There is conflict in the evidence as to the speed. However, appellee's testimony is that the car was driven at the sustained speed of 85 to 90 miles per hour from the time he first noticed the speed to the place of collision which occurred about two miles beyond the town of Deputy.

According to appellant's own testimony, he was not familiar with the road and kept a close watch on both the speedometer and the road. The highway was 'very winding' and although it had recently been resurfaced with blacktop, was 'wavy' and not smooth and there was a deop-off at each edge of the pavement of from two to four inches at the berm. The pavement was generally dry, but there was ice and snow on bridges and shady places. Immediately prior to the collision appellant drove across a bridge and into a curve in the highway where, in appellant's words, 'it seemed like it was a slick place.' There the car first went off the pavement on the right side, then almost immediately it came back onto the pavement where it skidded sideways down the highway for about 300 feet.

Other witnesses testified that thereafter the car went off the pavement onto the berm on the left side of the highway where it traveled about 140 feet, making deep tracks in the soft berm, before it went down a six to eight foot embankment where it hit a utility pole which was about eight inches in diameter. It broke out a section of the pole about 10 feet in length, leaving the stump in the ground and the upper portion hanging to the wires to which it was attached. The car then traveled another 100 feet, carrying the section of the pole with it, turning over one or more times before it came to rest. The car was completely demolished.

The question we must determine is whether the facts as set forth above are sufficient to sustain appellee's charge that appellant was guilty of wanton or wilful misconduct in the operation of the automobile. As cause for appeal from the adverse judgment, appellant relied primarily upon the decision of this court in the case of Brown v. Saucerman, supra, (237 Ind. 598, 145 N.E.2d 898, 906). In that case this court by an equally divided opinion on the issue of the applicability of the guest statute (§ 47-1021, supra) denied liability. Therefore the judgment of the trial court, which denied liability, was affirmed. Appellant asserts first that although the decision in the Saucerman case was by divided court, the trial court in the case at bar was bound by the 'prevailing opinion' of this court in the Saucerman case. And further, appellant asserts that the facts in the Saucerman case were much stronger in favor of the injured guest than they are in this case.

Appellant's argument is in error on both counts. As previously stated, this court in the Saucerman case was equally divided upon the issue as to whether or not the quest statute was applicable to the facts in that case. Therefore although the court, because of the equal division thereof, affirmed the judgment of the trial court, there is no prevailing precedent which can be drawn from that case with regard to the application of the guest statute to the facts presented. Furthermore, we note that appellant here erroneously assumes that the alleged prevailing opinion in the Saucerman case rests upon the assumption that at the time of the collision the appellant in that case was driving at a speed of from 70 to 80 miles per hour and that this excessive speed was the proximate cause of the collision. However, the evidence regarding speed as recited in the Saucerman case is limited to that of an officer who examined the car the next day and merely estimated the speed of the car from the damages done to be 'better than 65 miles per hour.' In fact, the alleged prevailing opinion upon which appellant relies specifically states that the testimony regarding a speed of 75 to 80 miles per hour was of no probative value. ²

Although the facts in the Saucerman case, supra, may have been such that there was a difference of opinion as to whether as a matter of law the driver of the car operated the same with conscious disregard for the safety of its occupants and thus required a reversal of the trial court which had denied liability, this is not true in the case before us. Here a verdict of liability was returned. The evidence in support of the verdict is that the driver drove the 1953 Chevrolet automobile for a distance of two miles before the collision at a sustained speed of 85 to 90 miles per hour over a winding, wavy, blacktop highway with which he was not familiar and on which there were spots of ice on bridges and shady places, and a sharp drop-off on each side of the pavement, and that immediately before the wreck appellant drove the automobile at such unabated speed across a bridge and into a curve which was, from all the evidence, clearly apparent to him and upon which 'it seemed like it was a slick place.'

Next we examine the ruling precedent of this court as stated in the Saucerman case, supra (237 Ind. 598, 602, 607, 608, 145 N.E.2d 898), and the Bedwell case, supra (221 Ind. 600, 606-607, 50 N.E.2d 875), as applied to the facts in the case at bar. We quote with approval the rules and proposititons of law set forth in the alleged prevailing opinion in the Saucerman case. In that case this court at page 602 of 237 Ind. at page 899 of 145 N.E.2d stated the law as follows:

"Willful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that injury will probably result.' Citing authorities.

'The burden was upon appellee herein to show by a preponderance of the evidence that appellant 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.''

Also, 237 Ind. at page 607, 145 N.E.2d at page 901 this court said:

'We adopt the rule as stated by the Wyoming Supreme Court in Meyer v. Culley, supra, at page 94 of 241 P.2d:

"While it is generally true that mere speed of itself does not constitute 'wilful mis-conduct' yet there may be a point at which the speed became so excessive that the danger of injury to a guest was probable at such extreme...