Hershberger v. Brooker, 1-1180A330

Docket NºNo. 1-1180A330
Citation421 N.E.2d 672
Case DateJune 09, 1981
CourtCourt of Appeals of Indiana

Page 672

421 N.E.2d 672
Anthony HERSHBERGER, Plaintiff-Appellant,
Billy J. BROOKER and Todd Rivera, Defendants-Appellees.
No. 1-1180A330.
Court of Appeals of Indiana, First District.
June 9, 1981.

Page 673

Buena Chaney, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for plaintiff-appellant.

William W. Drummy, Patrick, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for defendants-appellees.



Anthony Hershberger appeals from an adverse verdict and judgment on his action

Page 674

for damages for personal injuries. We affirm.

Hershberger was injured when the automobile in which he was riding as a guest left the roadway, having failed to negotiate a curve at a high rate of speed, and went into a ravine knocking over some small trees and brush. At the time of the incident, Todd Rivera, the driver, was not quite sixteen years of age and did not have a driver's license. Rivera was engaged in driving Hershberger and another young man to a baseball park. The automobile driven by Rivera belonged to Billy J. Brooker, Rivera's guardian, and was furnished to Rivera for that purpose by Brooker, at Brooker's direction, and with full knowledge that Rivera was an underage unlicensed driver.

Hershberger originally sued only Brooker on a theory of negligent entrustment of a motor vehicle to an incompetent driver. Later, he filed an amended complaint in three counts. The first count proceeded against Brooker on the negligent entrustment theory, the second count charged Brooker with wilful or wanton misconduct in entrusting the automobile to Rivera, and the third count, which was directed against Rivera, alleged wilful or wanton misconduct in the operation of the automobile causing Hershberger's injuries.

The trial court granted a motion to dismiss Count I of the amended complaint, and deleted all reference to negligence in the statement of issues. Trial by jury resulted in a verdict in favor of both defendants, Brooker and Rivera.


1. Does the Indiana guest statute insulate the owner of an automobile from a claim for damages for injuries to a guest in that automobile based upon negligent entrustment of the automobile to an incompetent driver?

2. Was the giving of defendants' instruction number 7, as part of the court's final instruction, reversible error?


Issue One

Hershberger makes a three pronged attack upon the court's action in dismissing the first count of his amended complaint and in deleting all reference to negligence from the statement of issues presented to the jury. He contends (1) the court's action was procedurally improper, (2) the Indiana guest statute does not apply to the claim against Brooker, and (3) the guest statute, if applicable, grants protection only against claims founded upon negligence, and since Brooker was guilty of negligence per se, he is not insulated from liability by the guest statute. We shall determine these questions in the order stated.


Brooker filed a motion to dismiss the original complaint based upon the guest statute. Before this motion was ruled upon, the three count amended complaint was filed. The court, on the same day, overruled the motion to dismiss as to the original complaint. Subsequently, a pretrial conference was held on January 24, 1980, wherein the parties were directed to file pretrial statements by April 25, 1980. Defendants filed such statement on February 13, 1980. Hershberger's statement was not filed until May 7, 1980. On May 12, 1980, Brooker and Rivera filed their motion to amend their pretrial statement and amended pretrial statement in which they renewed their previously filed motion to dismiss as to Count I of the amended complaint. The trial court on May 9, 1980, prior to the commencement of the trial on that date, granted the motion to amend, dismissed Count I, and ordered the term "negligence" stricken from all parts of the pretrial statement. The trial then proceeded.

Hershberger contends the trial court's actions were procedurally improper in that there was no pending motion to dismiss, the defendants had filed an answer, the agreed

Page 675

"pretrial order" was never withdrawn or amended by joint action of the parties or with his consent, defendants did not contend and the trial court did not find that manifest injustice would result from denial of the amendment, the court abused its discretion, and plaintiff was prejudiced by being forced to sustain the greater burden of proving wilful or wanton misconduct rather than negligence.

In answer to these contentions, we first observed that no pretrial order defining the issues was ever entered. The parties merely were directed to submit their pretrial statements. Thus, there was no pretrial order which would "control the subsequent course of action, unless modified thereafter to prevent manifest injustice." Indiana Rules of Procedure, Trial Rule 16(J). Second, Count I of the amended complaint was identical to the original complaint to which a motion to dismiss under Ind.Rules of Procedure, Trial Rule 12(B)(6) for failure to state a claim upon which relief could be granted, asserting the applicability of the guest statute, had been filed. The amendment asked to renew that motion. Trial Rule 12(H)(2) provides that "(a) defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(A) or by motion for judgment on the pleadings, or at the trial on the merits. (Emphasis added.) Since the defendants could have asserted the grounds of their motion by leave to file an additional answer, or at the trial, we perceive no error in the court's allowing the renewal of the motion to dismiss. In addition, since we believe the motion was well-taken and properly sustained, we find no abuse of discretion on the part of the trial court.

Hershberger's claim that he was forced to go to trial on the basis of having to prove wilful or wanton misconduct rather than negligence, and was thus prejudiced, likewise is without merit. Both Counts II and III of his amended complaint alleged wilful or wanton misconduct. Thus, no new issue of which he was unaware was suddenly and without notice injected into the proceeding. Further, if Hershberger believed he was being compelled to go to trial on issues he was not prepared to meet, he should have asked for a continuance. No continuance was requested. There was no procedural error requiring reversal.


Next, Hershberger contends that the Indiana guest statute is not applicable to his claim against Brooker for negligent entrustment of the automobile to Rivera. He is mistaken.

The Indiana guest statute, Ind.Code 9-3-3-1 provides:

"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 question of whether or not this statute applies to an action brought by a guest against the owner of a motor vehicle who is not the driver but negligently entrusts the vehicle to an incompetent driver has never been decided by the courts of this state. However, the United States District Court for the Northern District of Indiana, Holbrook v. Ramsey, (N.D.Ind.1966) 254 F.Supp. 94, in a well reasoned opinion by Judge Beamer, held the guest statute to be applicable in such a case. The court there stated:

"Most jurisdictions hold that Guest statutes similar to the statute in force in Indiana do bar a suit by a guest passenger against an owner of a motor vehicle for the common law tort of negligent entrustment. Since this issue has not been determined by the courts of Indiana, this Court must adopt the rule which represents the fairest, most logical, and well reasoned view, which, presumably, would be adopted by the highest court of this state.

Page 676

"In the opinion of this Court, the rule which bars an action by a guest passenger against the owner of the automobile for negligently entrusting the vehicle to an incompetent driver is the better rule when considered in relation to the policy, purpose and statutory provisions of the Guest Act, ...

"Two of the purposes for the enactment of legislation such as this are the prevention of collusion between the parties against an insurer and the legislative determination that a person who permits another to ride as a non-paying passenger should not be liable for injuries sustained by such person resulting from ordinary negligence.... Finally, the statutory language supports the conclusion that a guest's action against the owner for negligent entrustment is barred. If, as defendant contends, the statute was only meant to apply to the actual operation of the vehicle, the legislature could have merely provided that the operator of a motor vehicle shall not be liable for damages sustained by a guest resulting from such operation unless such damages are caused by the operator's wanton or wilful misconduct. However, the statute provides that 'the owner, operator, or person responsible for the operation shall not be liable * * * unless such injuries are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle." This language evidences an intent to insulate the owner as well as the operator from liability predicated upon negligence for injuries to a guest 'while being transported' and 'resulting from the operation' of the motor vehicle. This construction is preferable not only because of the policy behind the Guest statute but also because of the language appearing in the statute."

254 F.Supp. at 95-96. As...

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