Hettmansperger v. Hettmansperger

• Decision Date: 18 January 1937
• Docket Number: No. 15300.,15300.
• Parties: HETTMANSPERGER v. HETTMANSPERGER.
• Court: Indiana Appellate Court

103 Ind.App. 632

5 N.E.2d 685

HETTMANSPERGER

v.HETTMANSPERGER.

No. 15300.

Appellate Court of Indiana, in Banc.

January 18, 1937.

Appeal from Huntington Circuit Court; Sumner Kenner, Judge.

Action by Carrie Hettmansperger against Truman Hettmansperger. Judgment for plaintiff, and defendant appeals.

Affirmed.Emmett S. Huggins, of Indianapolis, Otto H. Krieg, of Huntington, and Walter S. Bent, of Wabash, for appellant.

Herman Hipskind, of Wabash, and Burr H. Glenn, of Huntington, for appellee.

CURTIS, Judge.

This was an action by the appellee against the appellant to recover for personal injuries alleged to have been sustained by her while riding as a nonpaying guest in an automobile owned and operated by the appellant.

The first paragraph of the appellee's amended complaint alleged that the appellee's injuries were caused by the appellant's willful misconduct toward the appellee in the driving of appellant's automobile, but this paragraph was dismissed by the appellee, and the cause was submitted and tried upon the second paragraph of the amended complaint, which was answered by a general denial. This paragraph alleged that the appellee's injuries were caused by an accident due to the reckless disregard of the appellee's rights as a nonpaying guest in the appellant's automobile which he then operated. Omitting formal parts, we set out a copy of the said second paragraph as follows:

“For a second paragraph of amended complaint herein, plaintiff in the above entitled cause complains of the defendant and says that at about the hour of 6:30 o'clock in the evening of the 7th day of December, 1930, this plaintiff was riding in a Model A Ford Coach automobile, bearing engine No. A-- 1206154, owned by said defendant and then being driven and operated by said defendant from the city of Kokomo, in Howard county, State of Indiana, over and upon the highway known as U. S. Highway 31, toward the city of Peru,. Miami county, State of Indiana. That this plaintiff was then and there riding in said automobile as the guest of said defendant, said plaintiff having been invited by said defendant to ride in his said automobile on said trip without payment for such transportation.

“Plaintiff further alleges that as said defendant driving said automobile as aforesaid, departed from said city of Kokomo and was operating his said automobile north on said U. S. Highway 31, mist and rain was falling and the atmosphere was foggy over and along said highway, so that the lights on defendant's said automobile did not pierce said fog and mist for more than 10 feet in front of said automobile, and it was impossible to see any object on said highway at a distance more than ten feet ahead of said defendant's automobile as it proceeded along said highway. That said defendant then and there drove and operated his said automobile at a high and reckless rate of speed, to-wit: 46 miles per hour, so as to endanger the life and limb of this plaintiff. That while said defendant was operating the said automobile as aforesaid for a distance of approximately four miles and immediately prior to the collision as hereinafter described, this plaintiff repeatedly cautioned said defendant that it was impossible for said defendant or this plaintiff to see any object upon said highway in front of them, and that there was great danger of colliding with another vehicle upon said highway if he continued to operate his said automobile so rapidly as aforesaid, and requested said defendant to drive at such a rate of speed that he could stop his automobile and avoid a collision in the distance at which any other vehicle or object could be seen in front of them, but that said defendant, in reckless disregard of the right of this plaintiff to be safely transported, continued to operate his said automobile at said high and reckless rate of speed through said mist and fog as aforesaid, and by reason thereof ran his said automobile into and against the rear end of a motor truck which was being operated north on and along said highway at a point about four miles north of said city of Kokomo and thereby this plaintiff suffered great bodily injuries in this: that her skull was fractured, the bones in the wrist of her right arm were broken and crushed, the tibia in her left leg was fractured just below the knee and the bones, ligaments and muscles of her entire body were injured, sprained and bruised. That as a result of said injuries this plaintiff has suffered and will permanently suffer throughout her life great and excruciating pain over her entire body; plaintiff's...