Clouse v. Peden

• Decision Date: 12 November 1962
• Docket Number: No. 30335,30335
• Citation: 186 N.E.2d 1,243 Ind. 390
• Parties: Daniel P. CLOUSE, Jr., by his next friend, Daniel P. Clouse, Sr., Appellant, v. William PEDEN, Appellee.
• Court: Indiana Supreme Court

Page 1

186 N.E.2d 1

243 Ind. 390

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

No. 30335.

Supreme Court of Indiana.

Nov. 12, 1962.

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

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

ACHOR, Judge [On petition to transfer].

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Repl. See: Clouse v. Peden (1962), 180 N.E.2d 781, for opinion of the Appellate Court.

This is an action for personal injuries sustained by appellant who was a passenger of appellee's automobile which collided with a farm tractor at the intersection of two county gravel roads.

At the conclusion of appellant-plaintiff's evidence, the court gave the jury a peremptory instruction to return a verdict for the appellee-defendant and entered a judgment on the verdict accordingly. This appeal followed.

Under the record before us the action of the trial court was proper only if all of the evidence favorable to the appellant and all the inferences which might reasonably have been drawn therefrom were not sufficient to establish wilful or wanton misconduct on the part of the appellee. Reynolds v. Langford (1961), 241 Ind. 431, 172 N.E.2d 867; Orey v. Mutual Life Ins. Co. of N. Y. (1939), 215 Ind. 305, 19 N.E.2d 547; Phares v. Carr (1952), 122 Ind.App. 597, 106 N.E.2d 242; Kostial v. Aero Mayflower Transit Co. (1949), 119 Ind.App. 377, 85 N.E.2d 644.

The Indiana guest statute, with which we are here concerned, reads of 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, § 1, p. 1229, being § 47-1021, Burns' 1952 Repl.

The evidence most favorable to the appellant was as follows:

The accident occurred about 4:30 P.M. on August 21, 1957 at an intersection of two county roads made of loose gravel in Clinton County, Indiana. One highway ran north and south and the other east and west. There was a high cornfield on the northeast corner of the intersection which obstructed the visibility of persons approaching from the north and from the east. There were no stop signs at the intersection and no posted speed zone, speed, being reasonable and prudent under the circumstances, not exceeding 65 miles an hour. The weather was warm and it was a clear day.

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, aged 16, was an invited guest, sitting in the right front seat of the car operated by appellee. When appellee reached a point on said road, about a mile from the intersection where the accident occurred, appellee increased the speed of the automobile to about 75 or 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 crossroad ahead and that he should slow down. When they came to a house a little over a half mile from the place of accident, appellant reminded appellee that the woman who lived in the house had had a wreck at this very crossroad. As the car went along the road at about 75 to 80 miles an hour it would slip and slide and sway. When it was about a third of a mile from the intersection, appellant 'started pleading and talking to him [appellee] to get him to slow down.' Appellee continued into the intersection without abating his speed or applying his brakes. The tractor and farm wagon traveling from the north entered the intersection ahead of appellee. Appellee's car hit the left rear wheel of the tractor, which was overturned and the operator killed. Appellee's car was a total loss.

The question which we are here required to determine is whether the conduct of the appellee constituted mere negligence or wilful or wanton misconduct, within the meaning of § 47-1021, supra.

Appellee contends that even though we accept all of the evidence favorable to the appellant, and all of the inferences which might reasonably be drawn therefrom, such evidence is not sufficient to establish more than negligence or recklessness on the part of the appellee. In support of this contention appellee asserts that the only evidence of misconduct chargeable to the appellee were (1) excessive speed, and (2) entering into an intersecting highway without giving preference to the traffic approaching from the right. It is appellee's contention that although each of these acts may constitute negligence or recklessness, they do not constitute wanton or wilful misconduct within the meaning of the guest statute, supra. Appellee cites and relies on the case of Buroker v. Brown (1959), Ind.App., 159 N.E.2d 140, as supporting the proposition that speed alone is not wanton or wilful misconduct. Appellee also cites the cases of Reynolds, Admtrx., etc. v. Langford, supra, 241 Ind. 431, 172 N.E.2d 867, and Becker v. Strater (1947), 117 Ind.App. 504, 72 N.E.2d 580, and supporting the proposition that mere failure to stop at a stop sign or to yield the right-of-way to traffic approaching an intersection from the right, is not such misconduct as to bring the case within the guest statute.

The case of Buroker v. Brown, supra, as written by the Appellate Court, is no longer authority since transfer of that case was granted to this court. In that case Buroker v. Brown (1961), 241 Ind. 421, 172 N.E.2d 849, when considered on transfer, this court recognized that, although speed alone may not in itself be more than negligence or recklessness, excessive speed may, depending upon the attending circumstances, constitute wanton or wilful misconduct.

Accordingly, the foregoing decisions are consistent with the proposition that the misconduct of a host driver, in order to bring it within the purview of the guest statute [§ 47-1021], supra, must be committed while the driver is possessed of a mental attitude with respect to both his driving and his guest, which is adverse to the welfare of his guest. This mental attitude is necessary if the conduct of the operator is to be described as being either 'wanton or wilful' misconduct.

As noted in the case of Brown v. Saucerman (1958), 237 Ind. 598, 601, 145 N.E.2d 898, the guest statute authorizes recovery from the host driver when his misconduct is either 'wanton or wilful.' ¹

As stated by the writer of this opinion in the concurring opinion of Brown v. Saucerman, supra, 237 Ind. 598, at page 619, 145 N.E.2d 898, at page 907:

'To be guilty of wanton misconduct within the meaning of the statute (§ 47-1021, supra), the driver must (1) be conscious of his misconduct; (2) be motivated by a...