Fuller v. Wiles

• Decision Date: 21 March 1972
• Docket Number: No. 671A102,671A102
• Citation: 280 N.E.2d 59,29 Ind.Dec. 664,151 Ind.App. 417
• Court: Indiana Appellate Court
• Parties: Orville FULLER, Plaintiff-Appellant, v. Larry K. WILES, Defendant-Appellee.

Page 59

280 N.E.2d 59

151 Ind.App. 417

Orville FULLER, Plaintiff-Appellant, v. Larry K. WILES, Defendant-Appellee.

No. 671A102.

Court of Appeals of Indiana, First District.

March 21, 1972.

Lewellyn H. Pratt, Bloomington, for plaintiff-appellant.

Don M. Robertson, Bloomington, for defendant-appellee.

LYBROOK, Judge.

Plaintiff-appellant brought this action for personal injuries under the guest statute and appeals from the action of the trial court in directing a verdict for the defendant-appellee at the close of plaintiff's evidence on liability.

The complaint alleged that on August 12, 1968, plaintiff was riding as a non-paying guest of defendant in a 1964 Chevrolet automobile and that he sustained personal injuries as a result of the 'wanton and (sic) willful misconduct' of the defendant which consisted of suddenly and violently accelerating said automobile, causing it to swerve and go out of control, striking a tree in the City of Bloomington.

Defendant in his answer joined the issue by admitting plaintiff's presence in the vehicle as a guest under the statute but denied the remainder of the complaint. This cause was submitted to a trial by jury and at the close of plaintiff's evidence on liability, defendant moved the court to instruct the jury to return a verdict for defendant. Said motion was granted and the jury duly returned the verdict as instructed and the Court then rendered judgment on the verdict against the plaintiff-appellant.

Plaintiff-appellant's Motion to Correct Errors was timely filed and overruled by the trial court and raised the single question as to whether the trial court erred in sustaining defendant's Motion for a Directed Verdict under the evidence and under the guest statute. The provisions of the statute cited as IC 1971, 9--3--3--1, Ind.Ann.Stat. § 47--1021 (Burns 1965) are as 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.'

The evidence in the record most favorable to the position of the plaintiff-appellant is: That on the day of the accident, defendant-appellee, Larry K. Wiles, was 16 years of age and had just obtained his driver's license after completing a three month driver's education course. Later that same day Wiles picked up the plaintiff-appellant, Orville Fuller, at his home so that they might wash the car in preparation for a visit to the Fall Festival at Martinsville.

With Wiles at the wheel and Fuller in the right front seat as a non-paying passenger, the vehicle proceeded south on Oak Street in the City of Bloomington to a 'T' intersection where Oak Street dead ends at Kirkwood Avenue. Wiles came to a complete stop in obedience to a stop sign, facing a concrete retaining wall which was 31 feet away, situated along the south side of Kirkwood Avenue. Plaintiff-appellant testified that he looked one way and Wiles looked the other;

'And just all of a sudden he just slammed the footfeed to the floor. I mean, it just set them tires on fire, I mean, you know, just tearing and squealing and just started taking off. I thought we was going to hit the wall and it just kind of swerved to the left. And then it was going all which ways and you could still hear the tires and everything and just about, oh, just a little bit I looked up and looked over at Larry and he looked like he was terrified, you know, like he couldn't move and I looked down at the accelerator and you know, he still had his foot on it and we was going every bit of thirty-five or forty miles an hour and I looked up and seen the tree right in front of me. I didn't have a chance to grasp onto anything and so all at once I just went down, left hand first, and that was about it right there.'

Plaintiff continued by saying again that Wiles, 'just slammed the accelerator to the floor' and that the car was fishtailing from side to side and headed right toward a tree east of the intersection and although the evidence was disputed as to the exact distance, plaintiff testified that it was approximately 150 feet. A police officer testified that the vehicle in question was a 'total loss' after the collision.

Plaintiff also testified that the acceleration was violent by saying:

'Well, I mean, he just tromped it. He turned the wheel so fast, you could just smell the rubber. Right down the road, you could see the tracks.'

Plaintiff further testified that the incident occurred so quickly that he did not have time to give any warning to Wiles. After the car struck the tree he saw Wiles sitting up on a hill and heard him hollering 'Why in the hell did I do it?' 'Why the hell did I do it?'

Appellant in his brief cites the following recent Indiana cases discussing the elements necessary to make a case under the guest statute. They are: Schwing v. McKibbin (1970), Ind.App., 264 N.E.2d 629; Mazza v. Kelly (1970), Ind.App., 258 N.E.2d 171; Brueckner v. Jones (1970), Ind.App., 255 N.E.2d 535; Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1.

The above cases, together with many other cases decided in recent years, provide us with the guidelines used by the courts in applying the guest statute to the facts in each case. The standard definition of willful or wanton misconduct was set forth in Becker v. Strater (1947), 117 Ind.App. 504, 72 N.E.2d 580 as follows:

'Willful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that injury will probably result.'

The above definition was quoted in Stillwell v. Adams (1963), 135 Ind.App. 495, 193 N.E.2d 74 and Brown v. Saucerman (1957), 237 Ind. 598, 145 N.E.2d 898.

In a leading case, Brown v. Saucerman, supra, the Supreme Court of Indiana laid out the test to be applied to the facts in the following language:

'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 desire to assert himself or his interests above or beyond, or in reckless indifference for, the safety of his guests, and (3) he must do so knowing that his conduct subjects them to a high probability of injury.'

In the recent case of Brueckner v. Jones (1970), Ind.App., 255 N.E.2d 535, this court said:

'Since 1937 the Indiana Supreme and Appellate Courts have laid down certain guidelines for the lower courts to follow in evaluating guest cases. An examination of these authorities indicates:

a. An error of judgment or a mistake standing alone, on the part of the host, will not amount to wanton or wilful misconduct.

b. The host must have manifested an attitude adverse to the guest, or of 'perverseness', in that the host must have shown he was indifferent to the consequences of his conduct.

c. The entire course of conduct of the host leading up to the accident must be considered.

d. The host must have had actual knowledge of danger confronting the guest.'

Further discussion of the necessity of the presence of a 'perverse motive' is contained in another recent decision, Mazza v. Kelly (1970), Ind.App., 258 N.E.2d 171, wherein the court said:

'We concur in the fact that to constitute 'willful or wanton misconduct' there must be a 'perverse motive,' in that the misconduct must be conscious and intentional and of such a nature that under the known existing conditions injury will probably result therefrom. However, as heretofore stated, this does not mean that the wrongful conduct of the driver must be motivated by malice, ill will, or intent to injure. Our statute uses the words 'wanton or wilful' in the disjunctive. Therefore, it...