Fuller v. Thrun
| Decision Date | 14 February 1941 |
| Docket Number | 16445. |
| Citation | 31 N.E.2d 670,109 Ind.App. 407 |
| Parties | FULLER v. THRUN. |
| Court | Indiana Appellate Court |
Barnes Hickam, Pantzer & Boyd, and Harold R. Woodard, all of Indianapolis, Daly & Freund, of Valparaiso, and Lee L Osborn, of La Porte, for appellant.
J A. Fleishbein and John P. Crumpacker, both of Valparaiso, for appellee.
This action was brought by the appellee, Carolyn Thrun, by her next friend, Walter Thrun, against the appellant, Harry V Fuller, and one Earl Marti to recover damages for personal injuries received in an automobile accident.
Her amended complaint alleged that on the 6th day of October, 1936, the appellee was an infant of the age of six years; that on said date she was left by her parents in the care and custody of the appellant, Fuller, for a period of about two hours while her parents were absent. That during said interim and about the hour of 7:30 P. M., the said Fuller, without the knowledge or consent of the parents, placed this appellee in a certain motor vehicle and proceeded to drive said motor vehicle over the streets of the city of Valparaiso, Indiana. The complaint then alleges that: "By reason of the tender age of this plaintiff, said plaintiff was not a guest passenger within the meaning of the laws pertaining thereto but, on the contrary, by reason of her said age, was incapable of consenting to be a guest but was wholly acting on the volition, care and custody of said Fuller, as herein set forth." The complaint further alleged that while said appellee was being so driven by the appellant Fuller in his automobile, a collision occurred between the car in which the appellee was riding and the car driven by the co-defendant, Earl Marti, which collision occurred at the intersection of Garfield Avenue and Lincoln Way in the City of Valparaiso. Various acts of negligence were charged against both co-defendants in the operation of their respective cars, and as a result of such collision, the complaint alleges that she was thrown against the glass and metal parts of the car in which she was riding and sustained severe injuries, cuts, and lacerations about her head and face. The complaint further alleges that such injuries have resulted in disfigurement and impairment of the appellee, which are permanent in nature. The complaint closes with a prayer for judgment in the sum of $10,000.
Each of the co-defendants, the appellant and Earl Marti, filed answers in general denial. The cause was submitted to a jury for trial, which returned a verdict in favor of the appellee against the appellant Harry V. Fuller in the sum of $2,200, and also returned a verdict in favor of the co-defendant, Earl Marti. Judgment was rendered upon this verdict, a motion for new trial was filed and overruled and this appeal has been perfected.
The only error relied upon in this appeal is that the trial court erred in overruling the appellant's motion for new trial. Under this assignment of error, the appellant contends that the verdict of the jury is contrary to law for the reason that the evidence conclusively shows that the appellee was at the time of her injury a guest of the appellant and therefore not entitled to recover except upon proof that the accident was intentional on the part of the appellant or caused by a reckless disregard of her rights. The appellant contends that all that the evidence shows in this case is, at most, only ordinary negligence on the part of the appellant for which he is not liable to his guest. Under this contention objections were made to the giving of certain instructions by the court. Exceptions were further taken to the court's refusal to give certain instructions tendered by the appellant. These instructions submitted to the jury for their determination the question as to whether or not the appellee was the guest of the appellant on the occasion on which her injuries were sustained.
These contentions present for our consideration the single question as to whether or not a child of tender years, age six, can be a guest as a matter of law of the owner of a motor vehicle under the statute in force and effect on the date of the alleged injury. This statute in force and effect on October 6, 1936, in the state of Indiana reads as follows: "No person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator, for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his reckless disregard of the rights of others." Chap. 201, Sec. 1, Acts of Ind.Gen. Assembly, 1929.
The appellant contends that the expression "no person" in the statute above quoted is all inclusive and that the term "guest" includes any person to whom hospitality is extended without pay, regardless of age or mental capacity. The appellee contends on the other hand that a child under the age of seven years is incapable of responsibility and accordingly had not mental capacity sufficient to accept an invitation such as would constitute her a guest of the driver within the meaning of the statute.
The appellee further contends that the capacity in which the appellee was riding with the appellant was a question of fact properly submitted to the jury and the court did not err under the instructions which sought to define the relationship of the owner or operator and guest.
Our attention has been directed to no decision of the courts of last resort in this state wherein the term "guest" as used in the statute above quoted has been defined. Webster defines the term "guest" as follows: "* * * a visitor entertained without pay, hence, person to whom the hospitality of home, club, etc., is extended." The term has been defined by courts of other jurisdictions and by text writers as follows:
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