Jay v. Holman

• Citation: 20 N.E.2d 656,106 Ind.App. 413
• Decision Date: 01 May 1939
• Docket Number: 16085.
• Parties: JAY v. HOLMAN.
• Court: Court of Appeals of Indiana

20 N.E.2d 656

106 Ind.App. 413

JAY v. HOLMAN.

No. 16085.

Appellate Court of Indiana, in Banc.

May 1, 1939

Harker & Irwin, of Frankfort, and McClure & Shenk, of Kokomo, for appellant.

Robison & Robison, of Frankfort, and Overson & Manning, of Kokomo, for appellee.

DUDINE Judge.

This is an appeal from a judgment for $4,000 secured by appellee against appellant in a suit for personal injuries suffered by appellee resulting from an automobile accident which occurred while she was riding in the appellant's automobile as her "guest."

The issues were formed by a third paragraph of complaint and an answer in general denial.

The complaint alleged, among other facts, that appellant was the owner of the automobile, that at the time of the accident it was being driven by Marion Wilson as agent of the defendant Mae Belle Jay; and "that all of the injuries to this plaintiff were caused by the reckless acts of Marion Wilson agent and driver of the defendant Mae Belle Jay and all the injuries were caused by his reckless disregard for the rights of others as hereinbefore set out."

The cause was submitted to a jury for trial resulting in a verdict and judgment in favor of appellee in the sum of $4,000. The jury also answered certain interrogatories which were submitted to them.

The errors assigned upon appeal are contended error in overruling appellant's motion for judgment on the answers to the interrogatories notwithstanding the verdict, and contended error in overruling appellant's motion for new trial.

The causes for new trial presented upon appeal are: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) error in the giving of each of several instructions; (4) error in refusing to giving each of several instructions tendered by appellant (5) contended misconduct of appellee's counsel.

We shall first consider appellant's contention that the verdict is not sustained by sufficient evidence.

The "Indiana Guest Statute of 1929", Sec. 47-1021 Burns' 1933, Sec. 11265, Baldwin's Ind.St.1934, was involved in this cause. Sec. one of said statute reads as follows: "No person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator, for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his reckless disregard of the rights of others " (Our italics.) The complaint expressly charges that the accident was caused by the operator's "reckless disregard for the rights of others", and that is clearly the theory upon which this cause was tried.

Appellant contends that the evidence does not sustain a finding that the accident in the instant case was caused by the operator's "reckless disregard of the rights of others" within the meaning of said phrase as used in said statute.

That statute was construed by this court in Coconower v. Stoddard, 1933, 96 Ind.App. 287, at page 296, 182 N.E. 466, at page 470, to provide that: "Liability of the owner or operator of a motor vehicle to a guest since the passage of the statute in question, exists only in two classes of cases: First, where the accident resulting in injury was intentionally caused; and, second, where the accident was caused by a reckless disregard of the rights of others, meaning thereby not to relieve from liability where caused when the owner or operator voluntarily does an improper or wrongful act, or, with the knowledge of existing conditions, voluntarily refrains from doing a proper and prudent act, 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." (Our italics.)

In the Coconower v. Stoddard case, supra, this court said: "While the questions as to whether the accident was intentionally caused, or caused by the reckless disregard of the rights of others, should be left to a jury in all cases where there is any conflict in the evidence, or where different inferences from the testimony given might be reasonably drawn, yet the case should be submitted under instructions which clearly and succinctly inform the jury that there must be something more than negligent conduct to justify recovery." (Our italics.)

Said holdings were followed in Hoeppner et al. v. Saltzgaber et al., 1936, 102 Ind.App. 458, 200 N.E. 458; Armstrong v. Binzer, 1936, 102 Ind.App. 497, 199 N.E. 863; Kraning v. Taggart, 1936, 103 Ind.App. 62, 1 N.E.2d 689.

The evidence shows without dispute that the accident occurred about 5:30 A. M. on the first day of January, 1936. Appellee and several other persons including said Marion Wilson were guests of appellant at her home in Kokomo when appellant's sister-in-law, who also lived in Kokomo, one block north and thirty-one blocks west of appellant's home, called appellant by telephone and invited appellant to come to her home and bring her guests with her. Some of the guests not having a means of conveyance, appellant suggested that her car be used. Thereupon appellee, appellant, Marion Wilson and two other guests got into appellant's car, backed it out of appellant's garage, and drove away from appellant's home, Marion Wilson driving the car and appellant sitting in the middle of the back seat. The party in the car did not proceed directly to the sister-in-law's home but went first to Marion Wilson's place of business, which was a few blocks off of the direct route to the sister-in-law's home. Wilson went into his place of business to see whether the place was properly closed, and having done that he returned to the car and drove it toward the sister-in-law's home. The accident occurred enroute to her home.

The automobile finally collided sidewise with a tree which was standing between the curb and the sidewalk. The frame of the automobile was bent about three inches. There was a six inch indenture in the roof and a three inch indenture in the door of the car which was a new "large" Oldsmobile.

There is dispute in the evidence as to the condition of the street travelled by the car. Marion Wilson testified that there was ice on the street but that ruts had been worn into the ice by traffic and that he operated the car in the ruts. Another witness testified however that it had rained during the night and the ruts were icy. Other witnesses testified that the street was "very icy", and that it was "covered with ice * * * it was pretty...