Hall v. Guthery, 19200

• Citation: 163 N.E.2d 752,130 Ind.App. 624
• Decision Date: 18 January 1960
• Docket Number: No. 19200,No. 2,19200,2
• Parties: Bedford HALL, Appellant, v. Thurston Eugene GUTHERY, Administrator of the Estate of Thurston P. Guthery, Appellee
• Court: Court of Appeals of Indiana

Page 752

163 N.E.2d 752

130 Ind.App. 624

Bedford HALL, Appellant, v. Thurston Eugene GUTHERY, Administrator of the Estate of

Thurston P. Guthery, Appellee.

No. 19200.

Appellate Court of Indiana, Division No. 2.

Jan. 18, 1960.

Steers, Klee, Jay & Sullivan, Indianapolis, for appellant.

Dulberger, Heeter & Salb, Indianapolis, K. Parker Vosloh, Bloomfield, for appellee.

SMITH, Judge.

This action was instituted to recover damages alleged to have been sustained to a Cadillac automobile owned and operated by Thurston P. Guthery. The complaint alleged in substance that Thurston P. Guthery, on the 26th day of December, 1953, operated his Cadillac automobile on Indiana State Highway No. 67 at a point 3 or 4 miles southwest of Spencer, Indiana; that the appellant Bedford Hall, operated an automobile southwest on said highway to the rear of the automobile operated by Thurston P. Guthery; taht the appellant attempted to pass the Cadillac automobile and, in so doing, a collision resulted; and as a result of the collision the Cadillac automobile was damaged. Both the appellant and the appellee were injured slightly as a result of such collision, and were eventually placed in an ambulance to be taken to a hospital in Linton, Indiana; however, on the way to Linton the ambulance was involved in a collision, in which Thurston P. Guthery was fatally injured. Following the death of Thurston P. Guthery, a son, Thurston Eugene Guthery, the appellee herein, was appointed as administrator of his father's estate; and thereupon, Thurston E. Guthery, as such administrator, brought this action for damages sustained to the Cadillac automobile owned by his father.

The appellee's amended complaint charges the appellant with four acts of negligence, namely: (1) that the appellant failed and neglected to keep a look out for traffic, including the motor vehicle operated by appellee's decedent; (2) that the appellant carelessly and negligently drove and operated his motor vehicle into and against the motor vehicle operated by appellee's decedent by cutting into and against said motor vehicle while in the act of passing the motor vehicle operated by appellee's decedent; (3) that the appellant carelessly and negligently omitted and neglected to yield the right-of-way to the motor vehicle operated by appellee's decedent, by cutting into and against the motor vehicle operated by appellee's decedent in a southwesterly direction on and along the westerly one-half of said highway; and (4) that the appellant carelessly and negligently operated his motor vehicle into and against the vehicle operated by appellee's decedent while he, the appellant, was under the influence of intoxicating liquor.

The appellant filed an answer to appellee's amended complaint in three paragraphs. In the first paragraph he denied the material allegations of negligence contained in the amended complaint. In the second paragraph he alleged that the Meridian Mutual Automobile Insurance Company had issued a certain policy of insurance to appellee's decedent wherein said insurance carrier insured the said Thurston P. Guthery against any loss that he might sustain as a result of any collision with another motor vehicle; that the Meridian Mutual Insurance Company paid all of the damages sustained to the said appellee's motor vehicle, and that the decedent's rights and causes of action, if any, growing out of the said collision are required to be and were assigned by operation of law to said decedent's insurance carrier, and that by reason thereof the insurance carrier is the real party in interest. The third paragraph of answer incorporates the same general allegations as were contained in the second paragraph of answer and in addition alleges that the decedent's rights and causes of action, if any, growing out of said collision are required to be and were assigned in writing to said decedent's insurance carrier. The general allegations incorporated in the fourth paragraph fo answer are identical to those contained in the second and third paragraphs, however, it contains an additional allegation that the insurance carrier, under the terms of said policy, paid for the damages sustained to appellee's decedent's motor vehicle in the sum of one thousand ninety-three ($1,093.00) dollars; and that by reason thereof, any damages that may have been sustained to appellee's decedent's motor vehicle have been reduced and mitigated by such payment and to the extent thereof.

The appellee filed a reply to the second, third and fourth paragraphs of appellant's answer in which he denied all of the material allegations contained therein.

Upon the issues thus joined the case was submitted to a jury for trial. The jury returned a verdict in favor of the appellee in the sum of two thousand, two hundred and fifty ($2,250.00) dollars, and a judgment was duly entered thereon. From this judgment the appeal is taken.

At the conclusion of appellee's case in chief, the appellant filed a motion for a directed verdict, which motion was overruled by the court.

The appellant urges as error the following: (1) the court erred in not ruling on defendant's motion ot weigh the evidence; and (2) the court erred in overruling the defendant's motion for a new trial.

The defendant's motion for a new trial contains three specifications, namely: (1) that the verdict of the jury is not sustained by sufficient evidence; (2) that the verdict of the jury is contrary to law; and (3) that the court erred in overruling the defendant's motion for a directed verdict at the conclusion of plaintiff's evidence.

In appellant's reply brief he admits that there is now no issue presented by appellant's Assignment of Error No. 1, namely: that the court erred in not ruling on defendant's motion to weigh evidence. Consequently the issue presented by such assignment has become moot.

In the second assignment of errors the appellant asserts that the court erred in overruling his motion for a new trial. The crux of appellant's claim therein appears to be that the record evidence does not support any allegation of negligence asserted by the appellee in his complaint. In support of this claim, the appellant urges that the entire record is devoid of any evidence, or any evidence from which any inference can be drawn, that the appellant either failed and neglected to keep a look out for traffic on State Highway No. 67; or that the appellant carelessly and negligently operated his motor vehicle into the motor vehicle owned and operated by the appellee's decedent; or that the appellant carelessly and negligently failed to yield the right-of-way to the appellee's decedent's motor vehicle by cutting into and against the same; or that the appellant operated his motor vehicle under the influence of intoxicating liquor. The appellant claims that all the record evidence establishes is the fact that there was a collision between two motor vehicles, one of which was owned by appellee's decedent. The appellant states that the evidence does not establish the fact that the appellant was the driver of the other motor vehicle involved in the collision; and neither does the evidence indicate the position of the two motor vehicles involved in the collision prior to the collision, nor the direction in which the appellant's motor vehicle was proceeding at the time of the collision, i. e., whether it was to the front or to the rear of the decedent's motor vehicle. The appellant urges that all these facts, including the allegation that the appellant operated the motor vehicle in question at the time and place alleged, were alleged in appellee's complaint and were specifically denied in appellant's answer.

In the determination of the question presented in appellant's Assignment of Error No. Two, we are required to consider all such evidence as is most favorable to the appellee in determining whether there was sufficient evidence to support the verdict, and the evidence necessary to support a verdict may be based upon circumstantial evidence. In considering the question of the sufficiency of the evidence, the court is limited to a consideration of that evidence most favorable to the appellee, including such inferences favorable to appellee, as might be fairly drawn by the jury. Aetna Life Insurance Co., Hartford, Conn., v. Nicol, 1949, 119 Ind.App. 441, 86 N.E.2d 311; New York Central R. Co. v. Thompson, 1939, 215 Ind. 652, 21 N.E.2d 625; Hudelson et al. v. Hudelson, 1905, 164 Ind. 694, 74 N.E 504; Ray v. Baker, 1905, 165 Ind. 74, 74 N.E. 619; Haskinson v. Cavender, 1895, 143 Ind. 1, 42 N.E. 358; Southern Product Company v. Franklin Coil Hoop Company, 1914, 183 Ind. 123, 106 N.E. 872; Chicago, T. H. & S. E. Ry. Co. v. Collins, 1915, 59 Ind.App. 572, 108 N.E. 377 [Rehearing denied, 59 Ind.App. 572, 108 N.E. 1135].

The issue to be determined by this appeal is whether or not the evidence most favorable to the appellee, with all reasonable presumptions and intendments, with every inference of fact that can be deduced from the evidence, and with the lending of credence to circumstantial evidence establishes any negligence on the part of the appellant as charged in appellee's complaint.

From an examination of the record evidence we find that Carl Christie, a witness for the appellee, testified in substance that he, at the time of the accident in question, was the duly elected Sheriff of Owen County. That, in the line of his official duties, he made an investigation of the scene of the accident in question shortly after the accident occurred. That the scene of the accident was on State Highway No. 67 approximately 3 1/2 miles west of Spencer, Indiana. That when he arrived at the scene of the accident he observed that two motor vehicles had been involved in a collision; one of them, being the Cadillac automobile owned by appellee's decedent, was over to the right side of the highway about 50 feet north of Highway 67 and east of old Highway #67. He...