Lee Bros., Inc. v. Jones
| Decision Date | 15 April 1944 |
| Docket Number | No. 17184.,17184. |
| Parties | LEE BROS., Inc., et al. v. JONES et al. |
| Court | Indiana Appellate Court |
LEE BROS., Inc., et al.
v.
JONES et al.
No. 17184.
Appellate Court of Indiana, in Banc.
April 15, 1944.
Appeal from Lake Superior Court; Fred Egan, Judge.
Action by Georgiann Jones, administratrix of the estate of William A. Jones, deceased, against Lee Brothers, Inc., and others for the death of plaintiff's intestate as the result of injuries sustained in an automobile accident. Judgment for plaintiff, and defendants appeal.
Affirmed in part, and reversed in part, with instructions.
[54 N.E.2d 111]
Gavit & Richardson, of Gary, Riley, Reed, Murphy & McAtee, of East Chicago, and Kenneth Call, of Gary, for appellants.
Oscar B. Thiel, Robert H. Moore, and Daniel J. Redding, all of Gary, for appellees.
CRUMPACKER, Chief Judge.
On the 5th day of July, 1942, William A. Jones suffered physical injuries in an automobile accident as a result of which he died four days later leaving a widow, Georgiann Jones, and two minor children. The widow, as administratrix of her husband's estate, brought this suit in the Lake Superior Court to recover resulting damages and charges the appellants with negligence proximately causing such accident. The case was tried to a jury and resulted in a joint verdict for the administratrix, the appellee here, against all of the appellants in the sum of $10,000. Each appellant appeals and assigns as error the overruling of his separate motion for a new trial. Each of said motions challenges the legality of the verdict and the sufficiency of the evidence to sustain it and complains of certain instructions given to the jury by the court on its own motion and the court's refusal to give certains others. The motions of Lee Brothers, Inc., James Lanter, and Almon H. Baldwin also complain of the admission and exclusion of certain testimony and the refusal of the court to grant a new trial because of newly discovered evidence.
The accident in controversy occurred in the eastern outskirts of the City of Gary on a four-lane concrete highway running east and west and divided in the middle by
[54 N.E.2d 112]
a yellow stripe with two lanes north of such stripe for west bound traffic and two lanes south thereof for traffic moving east. At about 4 o'clock in the afternoon of July 5, 1942, the appellant Lanter, for and on behalf of his employer Lee Brothers, Inc., was driving a large truck of the tractor-trailer type in an easterly direction in the most southerly or outer lane of said highway. He was overtaken by the appellant Baldwin driving a Ford automobile in which the appellee's decedent, William A. Jones, was also riding. In the act of passing the truck the appellant traffic or the the inner lane for east bound traffic or the first lane to the south of the yellow line. When almost abreast of said truck the Baldwin car was struck almost head on by a Plymouth automobile which was being driven in a westerly direction along said highway by the appellant Eli Nedelchoff, and, as a result of such collision, the plaintiff's decedent received injuries from which he died. The appellee charges in her complaint that the appellants were each careless and negligent in the manner in which they drove their respective vehicles, and, as the proximate result of the concurrent negligence of each, the accident occurred.
The appellee's case against the appellant Baldwin is based on the theory that at the time of the accident her decedent was a passenger for hire in the Baldwin automobile and that, therefore, the guest statute, relieving Baldwin of responsibility for mere negligence, has no application. At the close of the appellee's case the appellant Baldwin moved for a directed verdict on the theory that the evidence discloses a guest and host relationship between him and the appellee's decedent and fails to show that his conduct in the premises was wanton and willful. A proper instruction for the purpose was tendered by said appellant but refused by the court and this, we think, was error.
The evidence on this question most favorable to the appellee discloses that Baldwin and Jones had been friends for many years. For some time prior to the accident in controversy they had worked in the same department of the Carnegie-Illinois Steel Corporation, Gary Works. Baldwin lived near Valparaiso and Jones in East Gary, and for two or three years Baldwin had been accustomed to pick Jones up and drive him to and from work. In return Jones had paid for gasoline used in the Baldwin car on 15 or 20 occasions each year. It is undisputed, however, that on the particular occasion in controversy Baldwin did not know that Jones was in the mill, but they met casually after the day's work and left for home together in Baldwin's car. Jones furnished no gasoline for this particular trip and there was no definite arrangement or understanding between them concerning the same, nor did Baldwin expect Jones to pay anything for such transportation or contribute any gasoline therefor.
The Automobile Guest Act of 1929 as amended in 1937, § 47-1021, Burns' 1940 Replacement, § 11265, Baldwin's Supp. 1937, relieves the owner or driver of an automobile from liability to an occupant except for injuries resulting from the wanton or willful misconduct of the operator, if such occupant is then being ‘transported without payment therefor.’ The word ‘guest’ as used in the above statute has been defined by the Supreme Court as follows:
‘The word ‘guest’ has more of social than business significance. The words ‘without payment for such transportation’ imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is primarily social, incidental benefits though monetary do not exclude the guest relationship. If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride.' Liberty Mut. Ins. Co. v. Stitzle, 1942, 220 Ind. 180, 41 N.E.2d 133, 135.
This definition was applied by this court in determining the relationship of the parties in the case of Albert McGann Securities Co. v. Coen, Ind.App.1943, 48 N.E.2d 58. Measured by this standard it is obvious that the appellee's decedent was being ‘transported without payment therefor’ when the accident that caused his death occurred, and that the appellant Baldwin is not responsible for mere negligence in the operation of his automobile at the time and place in suit.
The appellee contends, that, even so, the evidence discloses wanton and willful misconduct on the part of Baldwin, and
[54 N.E.2d 113]
that her complaint should be deemed amended to conform to the proof and thus permit the verdict to stand. Such procedure would be proper if, as a matter of law, the evidence discloses Baldwin's misconduct to have been wanton and willful, but we cannot agree that it does. It has been held by the Supreme Court that the words ‘willful’ and ‘wanton’ as used in the automobile guest statute are nearly synonymous. To constitute ‘wanton or willful misconduct’ it must appear that the driver of an automobile is conscious of his conduct, and with an appreciation of existing conditions knows that his conduct, if persisted in, will probably result in injury to his guest; and yet, with reckless indifference to consequences, he consciously or intentionally persists in such conduct and as the proximate result thereof his guest is injured. Bedwell v. DeBolt, Ind. Sup.1943, 50 N.E.2d 875. See also Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, vol. 4, § 2322, pp. 109 and 110; Berry, Automobiles, Seventh Edition, § 2-340. The most that can be said in support of the appellee's position in the case at bar is that the appellant Baldwin was racing with the appellant Lanter and, in doing so, drove his automobile at 50 miles per hour with ‘heavy traffic’ approaching and passing in the opposite direction. It is undisputed, however, that the so-called race took place on a four-lane highway and on that side thereof reserved for vehicles traveling in the same direction. His side of the highway ahead was clear and unobstructed, and the...
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