Keck v. Kerbs, No. 3-378A64

Docket NºNo. 3-378A64
Citation182 Ind.App. 530, 395 N.E.2d 845
Case DateOctober 24, 1979

Page 845

395 N.E.2d 845
182 Ind.App. 530
Beth Ann KECK, a minor, and Paul Keck, her father,
Appellants (Plaintiffs Below),
v.
Thomas J. KERBS, Appellee (Defendant Below).
No. 3-378A64.
Court of Appeals of Indiana, Third District.
Oct. 24, 1979.

[182 Ind.App. 531]

Page 846

William F. Carroll, Crown Point, for appellants.

William F. Satterlee, III, Valparaiso, John E. Hughes, Hoeppner, Wagner & Evans, Lowell, for appellee.

STATON, Judge.

Beth Ann Keck, a minor, and Paul Keck, her father, filed suit against Thomas J. Kerbs alleging that Kerbs was guilty of wanton or wilful misconduct in operating an automobile in which Beth Ann Keck was a passenger. As a result of such misconduct, Beth Ann sustained personal injuries in an accident when Kerbs' automobile struck a utility pole. Trial before a jury commenced. At the close of the presentation of all evidence, the trial court granted Kerbs' motion for judgment on the evidence, pursuant to Ind.Rules of Procedure, Trial Rule 50(A)(3).

The Kecks appeal and seek review of the following issue:

Did the trial court err when it granted Kerbs' motion for judgment on the evidence after all parties had rested?

We reverse.

The Kecks assert that the evidence most favorable to the Kecks establishes a question of fact for the jury to resolve whether Beth Ann's injuries resulted from Kerbs' wanton or wilful misconduct within the meaning of the Indiana Guests Statute, IC 1971, 9-3-3-1, Ind.Ann.Stat. [182 Ind.App. 532] § 47-1021. 1 Kerbs maintains that the accident is attributable to a mere error of judgment not rising to the quality necessary to invoke the wanton or wilful label. He argues that there was not enough evidence of wanton or wilful misconduct to warrant submission of the case to the jury.

The generally stated standard to be applied by the trial court when considering a motion for judgment on the evidence proffered at the conclusion of all evidence requires the trial court to consider only the evidence most favorable to the nonmoving party. The motion may be granted only if there is no substantial evidence or reasonable inference to be adduced therefrom to support an essential element of the claim. If there is or if reasonable persons might differ, then judgment on the evidence is improper. Huff v. Travelers Indemnity Company (1977), 266 Ind. 414, 363 N.E.2d 985, 990; American Turners of South Bend v. Rodefer (1978), Ind.App., 372 N.E.2d 516, 517. See Barbee v. McKay (1968), 143 Ind.App. 205, 238 N.E.2d 690.

A. Material Facts

On the afternoon of January 24, 1975, Thomas J. Kerbs, age 17 years, was among a group of boys who met at the Crown Point home of a friend, Bob Keck, when school let out early. Kerbs arrived between 1:30 p. m. and 2:00 p. m. The group drank beer and peppermint schnapps.

Beth Ann Keck, age 10 years; Sheila Pyke, age 11 years; Christopher Brady, approximately 12 years old; and Tom Keck, approximately 12 years old, were also at the Keck residence. Kerbs decided to drive to Zip Foods, located about a mile from the Keck residence on the Crown Point-Cedar Lake Road. Beth Ann wanted to purchase some candy and received permission from her older brother Bob to accompany Kerbs. Sheila, Christopher, and Tom also went along with Kerbs.

Page 847

Sheila testified that Kerbs held held a can of beer between his legs on [182 Ind.App. 533] the way to the store. Kerbs testified that he did not recall whether or not he had taken any beer along with him.

Kerbs testified that he had driven the Crown Point-Cedar Lake Road many times and was aware of a blind spot in the road near 125th Avenue. The weather condition that day was sunny and the road "looked kind of dry." The posted speed limit was 30 m. p. h.

Kerbs drove faster than the speed limit on the way to Zip Foods. Otherwise the trip was uneventful and Kerbs stopped at a posted stop sign both to and from the store. On the return trip to the Keck residence, Kerbs was behind a slower moving vehicle. As Kerbs approached the intersection of Crown Point-Cedar Lake Road and 125th Avenue, he pulled over into the opposite lane to pass.

The point where Kerbs chose to pass was at a blind spot where shrubbery and trees obstruct clear vision of oncoming traffic. As Kerbs had almost completed passing the vehicle, he suddenly realized that a car was approaching from the blind spot. He sped up and managed to pull in front of the vehicle he was passing. However, he lost control of his car and was unable to slow down. His vehicle went on and off of the berm several times and eventually crashed into a utility pole. The car was totalled.

Beth Ann and Sheila had been conversing in the back seat. Sheila and Christopher each estimated that the Kerbs' car was travelling at least 60 m. p. h. while passing.

The crash occurred at 3:45 p. m. Officer Keith A. Foors of the Lake County Police Department investigated the accident. Foors talked with Kerbs at the scene and later at the hospital where Kerbs was treated for lacerations. Foors noticed the distinct smell of intoxicating liquor on Kerbs' breath both at the accident site and at the hospital. Based on his observations at the accident scene as well as his experience as a police officer, Foors concluded that Kerbs was intoxicated. Kerbs was arrested on a charge of driving while under the influence of intoxicating liquor and was released to his father's custody. No field tests or breathalyzer tests were administered.

The children, Beth Ann, Sheila, and Christopher, each testified that [182 Ind.App. 534] Kerbs did not appear to be drunk when they left for Zip Foods. Betty Mae Keck, Beth Ann's mother, conversed with Kerbs at the hospital between 7:30 p. m. and 8:00 p. m. and stated that Kerbs had an intoxicant on his breath.

On January 25, 1975, the day after the accident, Kerbs pled guilty to the charge of influence of an intoxicating beverage. At the Keck trial, Kerbs testified that when he pled guilty he had not realized that he was admitting that he was drunk, just that he had some alcohol in his blood. He testified that he had consumed 2-3 beers in a period of an hour and forty-five minutes.

Additionally, Kerbs testified that he knew that drinking and driving don't go together but that he did not feel that he was under the influence of alcohol as he was driving the car. Kerbs indicated that he had been unable to slow the car down because his foot was temporarily wedged beneath the brake pedal. Officer Foors testified that Kerbs had not told him about the foot being lodged under the brake pedal; instead, Kerbs had indicated that he did not know why the accident had occurred.

B. Wanton or Wilful Misconduct

The rule with regard to wanton or wilful misconduct has been generally stated as follows:

"In order to constitute willfulness or wantonness within the meaning of this rule, the acts or conduct of the operator of the motor vehicle causing the injury must be done under circumstances which show that the operator is aware, from his knowledge of existing conditions, that it is probable that injury will result from his acts or omissions, and nevertheless proceeds with reckless indifference as to the consequences, or acts without consideration for others on the highway or without care for their safety; but it is not necessary that the driver should have

Page 848

any ill will toward the person injured or that he intend to cause, or deliberately cause, the accident or injury in question.

"More precisely, it has been held that there is a distinction between the terms 'willful' and 'wanton,' as used in such cases, in that 'willful' implies intent or purpose, while 'wanton' expresses a reckless disregard of consequences." (Footnotes omitted.)

60A C.J.S. Motor Vehicles § 258 (1969).

[182 Ind.App. 535] The rule has been stated by Indiana courts as follows:

"Willful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that injury will probably result."

Becker v. Strater (1947), 117 Ind.App. 504, 72 N.E.2d 580, 581. See Sausaman v. Leininger...

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16 practice notes
  • Weinstock v. Ott, No. 3-581A122
    • United States
    • Indiana Court of Appeals of Indiana
    • February 9, 1983
    ...is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper. Keck v. Kerbs (1979), Ind.App., 395 N.E.2d 845; Arnold, Large v. Gregory (1981), Ind.App., 417 N.E.2d 1160, 1163. The trial court did not err in denying Dr. Weinstock's motion for judgme......
  • Hershberger v. Brooker, No. 1-1180A330
    • United States
    • Indiana Court of Appeals of Indiana
    • June 9, 1981
    ...or purpose, while "wanton" involves a reckless disregard of consequences. Sausaman v. Leininger, supra; Keck v. Kerbs, (1979) Ind.App., 395 N.E.2d 845, trans. denied. 7 Perhaps the term "wilful Page 679 misconduct" as applied to guest statute cases was best defined by the Supreme Court of O......
  • Dettman v. Sumner, No. 4-1083
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1985
    ...v. Stevens, (1835) 4 Blackf. 24; Ferdinand Furniture Co., Inc. v. Anderson, (1980) Ind.App., 399 N.E.2d 799; Keck v. Kerbs, (1979) 182 Ind.App. 530, 395 N.E.2d 845; State Highway Commission v. Jones, (1977) 173 Ind.App. 243, 363 N.E.2d 1018; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App.......
  • Wohlwend v. Edwards, No. 54A01-0211-CV-460.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 2003
    ...misconduct per the Guest Statute. The defendant cited Andert, Roberts v. Chaney, 465 N.E.2d 1154 (Ind.Ct.App.1984), and Keck v. Kerbs, 182 Ind.App. 530, 395 N.E.2d 845 (1979), for the proposition that intoxication must be combined with some other misconduct such as speeding or driving on th......
  • Request a trial to view additional results
16 cases
  • Weinstock v. Ott, No. 3-581A122
    • United States
    • Indiana Court of Appeals of Indiana
    • February 9, 1983
    ...is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper. Keck v. Kerbs (1979), Ind.App., 395 N.E.2d 845; Arnold, Large v. Gregory (1981), Ind.App., 417 N.E.2d 1160, 1163. The trial court did not err in denying Dr. Weinstock's motion for judgme......
  • Hershberger v. Brooker, No. 1-1180A330
    • United States
    • Indiana Court of Appeals of Indiana
    • June 9, 1981
    ...or purpose, while "wanton" involves a reckless disregard of consequences. Sausaman v. Leininger, supra; Keck v. Kerbs, (1979) Ind.App., 395 N.E.2d 845, trans. denied. 7 Perhaps the term "wilful Page 679 misconduct" as applied to guest statute cases was best defined by the Supreme Court of O......
  • Dettman v. Sumner, No. 4-1083
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1985
    ...v. Stevens, (1835) 4 Blackf. 24; Ferdinand Furniture Co., Inc. v. Anderson, (1980) Ind.App., 399 N.E.2d 799; Keck v. Kerbs, (1979) 182 Ind.App. 530, 395 N.E.2d 845; State Highway Commission v. Jones, (1977) 173 Ind.App. 243, 363 N.E.2d 1018; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App.......
  • Wohlwend v. Edwards, No. 54A01-0211-CV-460.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 2003
    ...misconduct per the Guest Statute. The defendant cited Andert, Roberts v. Chaney, 465 N.E.2d 1154 (Ind.Ct.App.1984), and Keck v. Kerbs, 182 Ind.App. 530, 395 N.E.2d 845 (1979), for the proposition that intoxication must be combined with some other misconduct such as speeding or driving on th......
  • Request a trial to view additional results

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