Lee Bros. v. Jones
| Decision Date | 15 April 1944 |
| Docket Number | 17184. |
| Citation | 54 N.E.2d 108,114 Ind.App. 688 |
| Parties | LEE BROS., Inc., et al. v. JONES et al. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
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.
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 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:
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 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 appellant Baldwin had the right to assume that approaching vehicles would stay on their proper side of the center line as the law required. Under such circumstances, it cannot be said that the appellant Baldwin consciously and intentionally persisted in a course of conduct that probably would result in injury to appellee's decedent. He had no reason to believe that an approaching automobile would suddenly leave its lane and cut across the center line into his path, if his own version of the manner in which the accident happened is accepted, nor to anticipate that the truck with which he was racing would crowd him over said line into the path of vehicles approaching from the opposite direction as claimed by the appellant Nedelchoff. If we were to concede that the appellant Baldwin's conduct was negligent it would yet fall short of being 'wanton or willful' as that term is used in the statute and as it has been defined by the courts.
In support of their contention that the verdict against them is not sustained by sufficient evidence, the appellants Lanter and Lee Brothers, Inc., first contend that there is a total lack of proof that the appellant Nedelchoff was negligent in any respect other than cutting across the center line of the highway without reasonable excuse, and, therefore, the jury's verdict against him must be considered as predicated upon that particular charge of negligence and definitely places the Nedelchoff car in Baldwin's path. This being so, the appellants Lanter and Lee Brothers, Inc. assert that the speed at which their truck or the Baldwin car was driven could not possibly have been the proximate cause of the accident in controversy. This, we think, is true. It was held in Stobie v. Sullivan, 1919, 118 Me. 483, 105 A....
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Lee Bros., Inc. v. Jones
...114 Ind.App. 68854 N.E.2d 108LEE BROS., Inc., et al.v.JONES et al.No. 17184.Appellate Court of Indiana, in Banc.April 15, 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......