Clouse v. Peden

• Decision Date: 07 March 1962
• Docket Number: No. 19453,No. 2,19453,2
• Citation: 180 N.E.2d 781
• Parties: Daniel P. CLOUSE, Jr., by his next friend, Daniel P. Clouse, Sr., Appellant, v. William PEDEN, Appellee *
• Court: Indiana Appellate Court

Page 781

180 N.E.2d 781

Daniel P. CLOUSE, Jr., by his next friend, Daniel P. Clouse, Sr., Appellant, v. William PEDEN, Appellee ^*

No. 19453.

Appellate Court of Indiana, Division No. 2.

March 7, 1962.

See also 179 N.E.2d 586.

John F. Townsend, Earl C. Townsend, Jr., townsend & Townsend, Indianapolis, Wernle & Ristine, Crawfordsville, for appellant.

Edgar W. Bayliff, Cook, Cook, Bayliff & Mahoney, Kokomo, John R. Berry, Foley & Berry, Crawfordsville, for appellee.

BIERLY, Judge.

Appellant instituted this action against appellee to recover damages for personal injuries allegedly resulting from a collision of appellee's automobile, in which appellant was being carried as a guest of appellee, with a farm tractor pulling a wagon. Appellant's complaint averred that his injuries were 'caused by' the 'wilful, wanton and reckless acts' of appellee as the operator of said automobile.

At the close of appellant's evidence in chief, appellee moved for a directed verdict in his favor, which motion the court sustained and instructed the jury to return its verdict for appellee.

Such verdict for appellee was accordingly returned by the jury and consistent judgment was entered thereon. The action of the court in sustaining said motion and giving said instruction is the only error assigned by appellant.

Appellant's complaint was in one paragraph and alleged that appellee operated said automobile in which appellant was a passenger:

'* * * in a wilful and wanton manner and in reckless disregard of plaintiff's safety and rights by driving said automobile along said gravel highway and into said intersection at a speed which was high and dangerous considering that the road was constructed of loose gravel and that defendant's view of traffic approaching on the cross-road from the north was obstructed by a corn field, to-wit: 70 miles per hour; and that he drove said automobile into said intersection without stopping, without having said automobile under reasonable control, without keeping a lookout for approaching traffic on said north-south county gravel road, and without yielding the right-of-way to traffic which had already moved into said intersection from defendant's right and from said north-south gravel road, although he was warned by plaintiff to slow down and to stop and that he was approaching a dangerous intersection.'

The evidence tends to establish the following facts as set forth in and taken from appellant's brief:

'This accident occurred about 4:35 P.M. on August 21, 1957 in Clinton County, Indiana at the intersection of two county roads made of loose gravel, one running north and south and one running east and west. * * * There was a high corn field on the northeast corner of the intersection obstructing the visibility and one could not see over the corn field so as to observe traffic approaching the intersection in a southerly direction. * * * There were no stop signs at any of the corners and no posted speed zone, speed being reasonable and prudent under the circumstances. * * * It was a warm, clear, summer day and there was dust as one usually encounters on a hot summer day in the country. * * * Appellee operated a 1955 Chevrolet in a westerly direction along the east and west road and into the intersection, colliding with a farm tractor pulling a wagon which was being operated in a southerly direction on the north-south road. At said time appellant, age 16, was an invited guest sitting in the right front seat of said car operated by appellee. When appellee reached a point on said road about one mile from the intersection where the accident occurred, appellee increased the speed of the automobile to 75 to 80 miles an hour. * * * Appellee was seeing how fast the car would run. At a point along said road about three-fourths of a mile from the scene of the accident appellant first cautioned appellee to slow down. He told appellee that there was a cross-road up ahead and that he should slow down. When they came to a certain woman's house along the road, which house was a little over a half of a mile from where the accident happened, appellant reminded appellee that he (appellee) knew this woman had had a wreck at this very cross-road, so he (appellee) had better be careful and slow down. * * * In response to said warnings by appellant, appellee said that 'there would not be any traffic on that road at that time of day.' * * * As the car went along the road at 75 to 80 miles an hour it would slip and slide and sway, and dust boiled up behind it. As to what happened from the Newman residence, which was about a third of a mile from the intersection, to the corner where the acciden happened, Daniel P. Clouse Jr. testified on cross-examination as follows: * * *

"Q. Did you say anything more from there to the corner?

"A. As we got closer to the corner I started pleading and talking to him to get him to slow down. I knew there might be a real possibility of someone coming along there.

"Q. You were pleading with him about slowing down?

"A. Yes.

"Q. And this is very clear in your memory?

"A. Yes.'

'Appellee heard appellant when he asked him to slow down, but appellee did not slow down at any time before he went into the intersection. * * * There were no skid marks indicating the application of brakes prior to the impact east of the intersection. The tractor and farm wagon traveling along the north-south road in a southerly direction were to appellee's right and entered the intersection ahead of appellee, the tractor being hit by appellee's car at the left rear wheel of the tractor. The accident occurred in the southwest quadrant of the intersection. The farm tractor was overturned and the operator killed. * * *'

Pictures showing the damages to the vehicles, the appearance of the roads and the corn field were introduced in evidence.

The question we must determine is whether the evidence discloses a factual situation which constitutes wilful and wanton misconduct by the appellee in the operation of the automobile at the time of the accident.

The 'Guest Statute of Indiana,' as enacted in 1929, prohibited a recovery by a guest in an action against an 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. By a decision of this court in the case of Coconower v. Stoddard (1932), 96 Ind.App. 287, 182 N.E. 466, it was held that this act of 1929 freed 'owners and operators from liability caused merely by failure to exercise ordinary care.' Bedwell v. DeBolt (1943), 221 Ind. 600, 605, 50 N.E.2d 875, 877. (Transferred from Appellate Court, Ind.App., 47 N.E.2d 176). The 1937 amendment to the 'Guest Statute' relieves the owner operator, or person responsible for the operation of a motor vehicle from liability '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 vehicles.' Acts 1937, ch. 259, § 47-1021, Burns' Ind.Stat., 1940 Replacement.

The interpretation or legislative intent as to the meaning of the expression 'wanton and wilful misconduct' in the 1937 amendment of the guest statute, challenged the appeal courts.

Subsequent to the 1937 Amendment of the Guest Statute our appeal courts have from time to time interpreted the meaning of 'wanton and wilful misconduct' as applied in appeals involving the Guest Statute.

The Indiana Supreme Court in discussing the meaning of 'wanton and wilful misconduct' as used in said act in the Bedwell v. DeBolt, supra, case said:

'* * * 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 of 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.' * * *

"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.' * * * 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. * * * And further, acts such as exhibit a conscious indifference to consequences, make a case of constructive or legal wilfulness. * * * 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. * * *...