Eikenberry v. Neher

• Decision Date: 05 June 1956
• Docket Number: No. 18828,18828
• Citation: 134 N.E.2d 710,126 Ind.App. 571
• Parties: Elma M. EIKENBERRY, Appellant, v. Alice NEHER, Appellee.
• Court: Indiana Appellate Court

Page 710

134 N.E.2d 710

126 Ind.App. 571

Elma M. EIKENBERRY, Appellant, v. Alice NEHER, Appellee.

No. 18828.

Appellate Court of Indiana, In Banc.

June 5, 1956.

Cook & Cook, Kokomo, for appellant.

Allen A. Appleton, Frankfort, Rockford, Blackwell & Rockford, Indianapolis, for appellee.

KENDALL, Chief Judge.

Action by appellee to recover damages for personal injuries received by her while a guest in appellant's automobile as a result of guilty and wilful and wanton misconduct on the part of appellant.

Trial by court resulting in a decision favoring appellee for $2,500 upon which judgment was rendered.

New trial motion, which was overruled, contained 17 specifications. On appeal, the only two specifications urged are that (a) the decision of the court is not sustained by sufficient evidence; (b) the decision of the court is contrary to law.

The assignment of error is the overruling of the new-trial motion.

The appellee is a sister of appellant's wife, who, on the day of the accident, had invited appellee and her son to go with them to South Bend. It is undisputed that appellee went along for the trip and that she was a gratuitous guest of appellant and his wife. The appellant and his wife were in the front seat; the appellee and her son, in the rear seat at the time of the accident. Up until the time of the accident no complaint had been made as to appellant's manner of driving. The acts of wilful and wanton misconduct are (1) that appellant drove to the left side of the highway when he knew he didn't have sufficient clearance to pass; (2) that appellant crossed the center line when Ortman was coming forward in plain view; (3) that appellant drove toward the Ortman car after he saw it coming toward him; (4) that appellant drove at a great and dangerous speed.

Sec. 47-1021, Burns' Stat., 1952 Replacement, is as follows:

'Guest of owner or operator--Right to damages.--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.'

We, thusly, are confronted with the frequent question as to the meaning of the words, 'wanton and wilful misconduct'. We find no clearer definition than that given in the case of Bedwell v. DeBolt, 1943, 221 Ind. 600, 50 N.E.2d 875, 877, in which the Supreme Court approved the language used by this court in the same case, 47 N.E.2d 176, which is:

"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.' Blashfield, Cyc. of Automobile Law & Practice, Permanent Ed., Vol. 4, § 2322, pp. 109 and 110.

"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.' Berry, Automobiles, Seventh Ed., Section 2.340. 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 injury 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. Baines v. Collins, 1942, 310 Mass. 523, 38 N.E.2d 626, 138 A.L.R. 1123. See also the Restatement of Law on Torts, § 500, [126 Ind.App. 575] page 1293. And further, acts such as exhibit a conscious indifference to consequences, make a case of constructive or legal wilfulness. Kahan v. Wecksler, 1938, 104 Ind.App. 673, 12 N.E.2d 998; Jeneary v. Chicago & Interurban Traction Co., 1923, 306 Ill. 392, 138 N.E. 203, 206; Reell v. Central Illinois Electric & Gas Co., 1942, 317 Ill.App. 106, 45 N.E.2d 500. 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. Murphy v. Snyder, 1939, 63 Ohio App. 423, 27 N.E.2d 152; Bartolucci v. Falleti, 1942, 314 Ill.App. 551, 41 N.E.2d 777. Ill will is not a necessary element. Bernier v. Illinois Cent. R. Co., 1921, 296 Ill. 464, 129 N.E. 747, affirming 215 Ill.App. 454." Kirsch v. Harker, 1950, 120 Ind.App. 66, 89 N.E.2d 924; Lee Brothers v. Jones, 1944, 114 Ind.App. 688, 54 N.E.2d 108.

With these definitions in mind, we proceed to view the present case as to whether or not there is substantial evidence of probative value to uphold the trial court's finding that appellant intentionally acted in such a way that under the circumstances the natural and probable consequences of his driving would result in injury to appellee.

The evidence most favorable to appellee reveals that at about 5:30 p. m., on November 19, 1952, appellant was driving his car in a southerly direction on State Highway No. 29. The appellant had followed a semitruck which was travelling southward on said highway for approximately two miles to a point about one and one-half mile south of Middlefork in Clinton County, Indiana, when the accident occurred. The weather was foggy, misty and a little rainy, pavement being damp. Appellant testified that it was getting late and he was in a hurry to get home. He, desiring to pass the semi, pulled to the left portion of the highway and into that portion thereof for vehicles going in a northerly direction. When he reached a point about equal in position on the road with the semi, appellant saw lights of a vehicle approximately 100 to 150 feet away, coming from the south and proceeding in a northerly direction, which car was operated by a Mr. Ortman. There is some conflict as to the exact distance away the Ortman car was when first observed by appellant as well as conflicting as to whether or not the Ortman car was zig-zagging. There was evidence that appellant was driving between 40 to 50 miles-per-hour at the time of collision, and the truck at approximately 35 miles-per-hour. The evidence is such that reasonable inference can be drawn that appellant was unable to pass the semi in view of the approach of the Ortman car. Appellant contended that he could not drop...