Collins v. Grabler

• Decision Date: 22 October 1970
• Docket Number: No. 1,No. 469A60,469A60,1
• Parties: Thomas COLLINS, Appellant, v. Lawrence GRABLER, Appellee
• Court: Indiana Appellate Court

Page 201

263 N.E.2d 201

147 Ind.App. 584

Thomas COLLINS, Appellant, v. Lawrence GRABLER, Appellee.

No. 469A60.

Appellate Court of Indiana, Division No. 1.

Oct. 22, 1970.

Rehearing Denied Nov. 23, 1970.

Richard C. Ver Wiebe, Lebamoff & Ver Wiebe, Fort Wayne, for appellant.

David B. Keller, Livingston, Dildine, Haynie & Yoder, Fort Wayne, for appellee.

LOWDERMILK, Chief Justice.

This is an action brought by plaintiff-appellant against defendant-appellee for personal injuries growing out of a collision between an automobile operated by appellee in which appellant was a guest passenger and another motor vehicle.

Appellant charged, by his second amended complaint, which was amended at the close of the trial, acts of wanton misconduct on appellee's part which proximately caused appellant's injuries.

To appellant's second amended complaint appellee filed answer in two paragraphs, the first being under Supreme Court Rule 1--3, and the second paragraph being in the affirmative and alleging appellant incurred the risk of the accident and injuries. The record discloses that during the trial appellee filed a motion for directed verdict at the conclusion of all the evidence, which was overruled by the court, and after which appellant asked leave to amend his second amended complaint by deleting therefrom the allegation of 'willful' misconduct on the part of the appellee. This request was granted by the court and the allegation of willful misconduct was stricken, and is not now a question before this court.

The trial was had by jury, and a verdict for $10,000 was returned for the appellant and a judgment duly entered in that amount.

Appellee timely filed his motion for new trial on the following grounds: (1) The verdict of the jury is not sustained by sufficient evidence.

The next day appellee's motion for new trial was granted, the court's decree reading as follows:

'It is therefore considered, adjudged, decreed and ordered that it does not appear that substantial justice has been done by the verdict of the jury heretofore rendered in this cause; that the verdict of the jury in finding for the plaintiff and awarding damages upon such finding was not sustained by sufficient evidence and was against the clear preponderance of the evidence adduced in the trial of this cause; that the preponderance of the evidence adduced upon the trial of this cause was in favor of the defendant and against the plaintiff; that defendant's motion for a new trial be and the same is hereby sustained and a new trial is ordered in this cause.' (Our emphasis.)

Subsequently, appellant filed his motion to make the order sustaining appellee's motion for new trial more specific, which motion was denied by the court.

This court has heretofore ordered and directed the judge of the DeKalb Circuit Court to give his reasons in writing for sustaining appellee's motion for a new trial, and the order has been complied with, and the additional reasons assigned are as follows:

'In response to the order of the Appellate Court of Indiana that 'the Judge of the DeKalb Circuit Court set out the specific reasons on which he determined the verdict of the jury in finding for the Plaintiff and awarding damages upon such finding was not sustained by sufficient evidence and was against the clear preponderance of the evidence adduced in the trial of the cause', the Judge of the DeKalb Circuit Court respectfully states that the clear preponderance of the evidence, indeed the uncontroverted evidence, adduced in the trial of said cause shows:

'1. That the Plaintiff, Collins, and the Defendant, Grabler, got together on the night in question for the planned and expressed purpose of having a night on the town and to go from bar to bar to drink and to try and pick up some dates.

'2. That in the course of said evening from about 10:30 P.M. to 2:30 A.M., both the Plaintiff and the Defendant each consumed ten or more drinks of alcoholic beverages, the drinking of which occurred while the Plaintiff and the Defendant were in the presence of each other with each having knowledge of the number and type of drinks of alcoholic beverage consumed by the other.

'3. That the Plaintiff became intoxicated, sick and sleepy due to the drinks he had consumed during the evening; that the Plaintiff knew that the Defendant had consumed as many or more drinks as had the Plaintiff; that both the Plaintiff and the Defendant were intoxicated.

'4. That the Plaintiff accompanied the Defendant on the evening's venture in Defendant's vehicle with the Defendant as the driver thereof to the places where the intoxicating beverages were consumed; that the Plaintiff voluntarily entered Defendant's vehicle with the Defendant as the driver thereof to be returned to his home at the conclusion of the drinking activities of the parties.

'5. That after leaving the last bar where the Plaintiff and Defendant had been drinking, until the bars were closed, and as the Plaintiff and Defendant made their uncertain way home, the Plaintiff had the Defendant stop the vehicle because the Plaintiff had to vomit; that after such act of vomiting, the Plaintiff voluntarily re-entered the vehicle driven by the Defendant for the ride home and the accident occurred shortly thereafter.

'6. That the accident which followed and the injuries to the Plaintiff resulting therefrom were the result of the intoxication of the Defendant, who recalled nothing of the trip after leaving the last bar except for the lights of more trucks than the evidence actually disclosed to have been present, which lights the Defendant thought he saw coming toward him in his lane of traffic just prior to the accident; that the Defendant swerved his car across the highway to avoid these trucks which he thought he saw coming in his lane of traffic and the collision occurred with vehicular traffic coming toward the Defendant in the opposite lane of traffic without any apparent application of the brakes on Defendant's vehicle prior to the collision.

'7. That the Plaintiff was a guest in the vehicle driven by the Defendant during the entire course of their evening's travels and adventure and the Plaintiff chose to remain the Defendant's guest in Defendant's vehicle on the trip home and further chose to re-enter such vehicle, after the same had been stopped to permit the Plaintiff to vomit, to continue the trip home.

'8. That at the time of the accident, the Defendant was so much under the influence of intoxicants that he was unfit to safely operate his vehicle and the Plaintiff knew or in the exercise of reasonable care should have known of Defendant's intoxicated condition; that in deliberately and voluntarily entering the vehicle which was being driven by the Defendant and in deliberately and voluntarily re-entering such vehicle after the same had been stopped and the Plaintiff had a choice whether or not to continue the trip home with the Defendant, the Plaintiff deliberately and voluntarily assumed the risks incident to such venture; that such deliberate and voluntary assumption of the risk should preclude recovery by the Plaintiff.

'9. That, the jury, having found for the Plaintiff and awarded damages to the Plaintiff, improperly ignored and failed to apply the doctrine of assumption of risk as above stated upon the factual situation as above set forth, and that the Defendant is accordingly entitled to a new trial.'

Appellant's assignment of errors is that: (1) That court erred in sustaining appellee's motion for a new trial.

The parties to this litigation were good friends. The appellee returned home from military service and the parties were celebrating appellee's return home. The events that took place before the collision occurred commenced at a restaurant where appellant was employed. The restaurant was located about four miles east of Fort Wayne, between that city and New Haven, and about one-half mile north of Highways 30 and 24. The time was about 9:30 P.M.

They went to Fort Wayne, with the appellee driving his own automobile. The first stop was at a drive-in restaurant, where appellee had coffee and appellant a coke. After one-half hour there they went to the Bavarian Village, a tavern in downtown Fort Wayne. While there appellee drank scotch and appellant beer, with each having two drinks. They remained there approximately 45 minutes to an hour.

They went from there to the Lucky Shoe, with appellee driving and appellant noticed nothing out of the ordinary about appellee's driving. At the Lucky Shoe, in a period of approximately one-half hour, each of them had three drinks, with appellant drinking beer and appellee drinking scotch.

Shortly after midnight they left the Lucky Shoe and went downtown to the Coney Island Hot Dog Stand, with appellee driving and appellant noticing nothing wrong with such driving. At the Coney Island Hot Dog Stand appellant had two hot dogs and appellee one. They were there fifteen to twenty minutes and walked two doors east to the Citadel, a tavern, arriving at approximately 12:30 A.M. At the Citadel appellant had one beer and appellee one scotch. The parties remained at the Citadel fifteen to twenty minutes and then walked back to the Coney Island. They returned to the appellee's automobile and drove back to the Bavarian Village, with appellee still driving and appellant noticing nothing out of the ordinary about appellee's driving at this time.

Appellant testified that at this time he noticed nothing at all about appellee's physical condition and that appellee was talking all right and was not slurring his words or anything of that sort.

At 1:00 o'clock A.M. or a little later the parties arrived back at the Bavarian Village and ordered more drinks. At this point in the evening appellant began drinking gin, lemon and 7--Up and appellee remained with his scotch. Each had approximately three drinks.

At 2:00 A.M. came the final call for drinks and appellee ordered another scotch. Appellant had...