Hoesel v. Cain
| Decision Date | 29 February 1944 |
| Docket Number | 27959,27960. |
| Citation | 53 N.E.2d 165,222 Ind. 330 |
| Parties | HOESEL v. CAIN et al. KAHLER v. SAME. |
| Court | Indiana Supreme Court |
Rehearing Denied March 30, 1944.
See 53 N.E.2d 769. [Copyrighted Material Omitted]
Appeal from Marshal Circuit Court; John W. Kitch Judge.
Stevens & Stevens, of Plymouth, and Hillis & Hillis, of Logansport, for appellant George Hoesel.
Delph McKesson and Marshall F. Kizer, both of Plymouth, and Louis A. Reidelback, of Winamac, for appellant George Kahler.
Paul E. Reed and William J. Reed, both of Knox, for appellee Hannah cain.
These cases are separate appeals from the same judgment and have been consolidated. Appellee Hannah Cain, by her next friend Calvin Cain, was plaintiff below. Appellants Hoesel and Kahler were the only defendants. She recovered a verdict of $10,000 for personal injuries on which judgment was entered against both appellants. They filed separate motions for new trial each of which was overruled.
In his motion Hoesel questions the sufficiency of the evidence to sustain the verdict against him. The complaint, which was in one paragraph, alleges that appellee, who was his guest, was injured in a collision between his car, one driven by Kahler and a third driven by an unnamed person who was not made a party. It proceeds upon the theory that Hoesel's wilful and wanton misconduct and Kahler's negligence concurred each proximately causing the collision and injury to appellee. There is no contention that she was guilty of any negligence. The evidence stated most strongly in support of the verdict against Hoesel is substantially as follows: Four cars containing thirteen young people in their late teens were being driven southward on U. S. Highway 35 from Royal Center to a street fair in Logansport about dusk in the evening of July 30, 1941. The collision occurred about three miles south of Royal Center. The first two cars each had four passengers. The third car was driven by Hoesel with Miss Cain and Richard Bonnell as passengers. The fourth was driven by Kahler with Madeline Maila as his passenger. The weather was fair, and warm, the pavement dry and the road straight and level except that some distance south of the point of impact there was a dip which obscured cars approaching from the south. Hoesel was familiar with the highway having used it frequently. The four cars, some with lights on, had been proceeding about 100 feet apart at a speed of fifty miles per hour. Hoesel attempted to pass a car going south. There is conflict in the evidence as to whether this was one of the four cars in the party or a strange car which they had overtaken. He 'speeded up', drove completely into the left lane, saw the lights of a car approaching out of the dip, tried to get back into the right lane and in so doing applied his brakes causing the car to skid, first to the right and then to the left, and while so skidding, it was hit in the left rear by the left front of the Kahler car which remained in the right lane. The Hoesel car continued to skid toward the left lane where it was hit by the car approaching from the south. Bonnell was killed and appellee severely injured. The alleged wilful and wanton misconduct is that Hoesel drove into the left lane 'knowing that due to the proximity of the oncoming car he could not pass the car ahead of him' and 'attempted to pull back in the line of traffic * * * knowing the car in his rear was in such close proximity that a collision was probable.' The word 'knowing' gives vitality to these allegations. But there is no evidence that he knew the car was approaching from the south until his car had crossed the center line. After the Hoesel car drew out of the right line of traffic Kahler proceeded into the vacated space but there is no evidence that Hoesel knew that fact. His only warning that he was turning back was the red light when he applied his brakes. From this evidence the jury would have been warranted in concluding that Hoesel was negligent in not anticipating, before he crossed the center line, the possibility of encountering a car coming from the south, but without his actual knowledge of its approach we are unable to persuade ourselves that the evidence supports a reasonable inference of his wilful and wanton misconduct. Bedwell v. De Bolt, Ind.Sup.1943, 50 N.E.2d 875; Swinney v. Roler, Ind.App.1943, 47 N.E.2d 846; Albert McGann Securities Co. v. Coen, Ind.App.1943, 48 N.E.2d 58, 1000.
When Hoesel turned into the wrong side of the road and saw the car approaching from the opposite direction in such close proximity that he could not pass, if he then had persisted in his course we could ascribe to him such conscious indifference to consequences as to constitute wanton misconduct. Sanford v. Grady, 1934, 1 Cal.App.2d 365, 36 P.2d 652, 37 P.2d 475, was that kind of a case. But he did not persist in this course. Instead he tried to avoid the peril caused by his prior negligence. Knowing that the Kahler car had been following at a distance of 100 feet but unaware of its change of position Hoesel's attempt to regain his former place in the line of traffic may also have been negligent but affords no fair inference that he was then so indifferent to consequences that he can be charged either with intent or willingness to inflict injury. We are not aided by the cases of Cole v. Morse, 1931, 85 N.H. 214, 155 A. 694, and Powers v. Comerford, 1933, 283 Mass. 589, 186 N.E. 585, both of which apply the law of Massachusetts which postulates more than one degree of negligence. The doctrine of comparative negligence does not prevail in Indiana. Between ordinary negligence and wilfulness there is no middle ground. A wanton injury is in the same class with a wilful injury. The first Guest Act, ch. 201, Acts 1929, exempted the driver from liability to his guest 'unless such accident shall have been intentional upon the part of such * * * operator or caused by his reckless disregard of the rights of others.' Even this language was construed as relieving from liability except 'under circumstances when his action, or his failure to act, evinces an entire abandonment of any care, and a heedless indifference to results which may follow, and he recklessly takes the chance of an accident happening without intent that any occur.' Coconower v. Stoddard, 1932, 96 Ind.App. 287, 296, 182 N.E. 466, 470. To justify recovery against Hoesel there must have been more than a failure to apprehend the danger of driving into the wrong lane of traffic. That was mere negligence. To have been guilty either of wilful or wanton misconduct he must have intentionally proceeded with knowledge of the peril or his conduct must have shown a conscious indifference upon his part as to whether or not his act would cause injury. His motion for a new trial was erroneously overruled.
Kahler's motion presents error in giving appellant's instructions numbered 9 and 10 as to inadequacy of brakes in the absence of evidence on the subject. The question was clearly presented by his oral objections under Rule 1-7. In the complaint he was charged with two acts of negligence: which speed was 'unreasonable for the further reason that the brakes on' his car 'were not in proper working order' and B. That he 'drove and operated his vehicle with defective brakes and with knowledge that the same were defective.' The court gave appellee's instruction 6 stating in substance that she could recover if either of the alleged acts of negligence be established. Instruction 9 stated that if the jury found that Kahler's car was 'not equipped immediately prior to and at the time of the accident with brakes adequate to control the movement of and to stop said automobile' the jury might take such fact into consideration in determining the question of his negligence. The tenth quoted that part of Clause (b) of § 47-2228, Burns' 1940 Replacement which applies to vehicles driving 20 miles per hour and then stated that the jury might take these provisions into consideration in determining the question of negligence of Kahler. The only evidence which would possibly be thought to prove that the brakes on his car were defective is found in the testimony of Scott Graham, the town marshal of Francisville, who was working in a garage to which the car was taken for repairs. Two days after the accident Graham examined the car. He testified as follows:
Disregarding the unintelligible and speculative portion of this testimony the inference is not that the brakes were inadequate but that they were effective.
The giving of instructions on an issue not supported by evidence is always erroneous. But not always is the error reversible. The rule is stated by Judge Mitchell in De Haven v. Helvie, 1890, 126 Ind. 82, 84, 25 N.E. 874, as follows:
'Where it can be said that an instruction which is not applicable to any evidence in the case resulted in no prejudice to the appellant, a reversal will not follow; but where it appears that the verdict of the jury may have been...
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