Loehr v. Meuser

• Decision Date: 29 June 1950
• Docket Number: No. 18007,18007
• Citation: 93 N.E.2d 363,120 Ind.App. 630
• Parties: LOEHR v. MEUSER.
• Court: Indiana Appellate Court

Page 363

93 N.E.2d 363

120 Ind.App. 630

LOEHR v. MEUSER.

No. 18007.

Appellate Court of Indiana, in Banc.

June 29, 1950.

George W. Hulbert, Gary, William I. Marlatt, Gary, for appellant.

Stiles & Bayor, Gary, J. Edward Barce, Kentland, for appellee.

CRUMPACKER, Judge.

The appellee was a guest of the appellant in an automobile owned and driven by him when it skidded on ice covering the pavement and went into a ditch whereby the appellee suffered personal injuries for which he sued and recovered judgment in the sum of $5,000.

This appeal presents several questions which we will discuss in the order of their presentation. First, the appellant contends that the evidence is insufficient to warrant the jury in finding that his conduct in the operation of his car was wanton or willful and therefore the so-called 'guest statute,' pertaining to the operation of motor vehicles in Indiana, prohibits a recovery. Burns' Stat. § 47-1021.

The facts most favorable to the appellee are substantially these. On the night of December 31, 1947, shortly before 11 o'clock p. m. the appellee, his wife Vera and one Betty Lloyd were seated in a restaurant in the city of Gary when they were approached by the appellant and invited to accompany him, in his automobile, to the Turkey Creek Country Club. The proposition was agreeable and they set forth with the appellant driving the automobile, Betty Lloyd seated at his right, and the appellee and wife in the rear seat. As they proceeded south on Broadway the appellant gradually increased the speed of said automobile to such an extent that at 11th Avenue the appellee saw fit to caution him. He paid no heed and at 17th Avenue he ran through a red traffic light at ever increasing speed and was again cautioned and asked to slow down. There was a cold mist in the air which froze on contact with the pavement and when they reached 25th Avenue and Broadway the streets were a sheet of ice. The appellant was then driving at 58 to 60 miles per hour, as indicated by the speedometer, and when the car ran onto the ice he almost lost control of it. The appellee thereupon said, 'You can either slow down or let us out.' The appellant replied, 'Oh, I am doing alright,' and proceeded without slackening his speed notwithstanding, as one witness expressed it the 'back end of the car was just dancing around on that ice.' Just after they crossed the Little Calumet River bridge on Broadway the appellee saw three or four cars approximately 100 yards ahead of them that had been 'piled up' in an accident and which completely blocked the west side of the street. At that time the appellant was not looking ahead but was engaged in conversation with Betty Lloyd. When his attention was called to the situation he 'slammed on the brakes,' the car went into a skid and slid 60 or 70 feet sidewise along the street into a car involved in the aforesaid accident and then shot across the street, over the curb on the east side thereof, across the sidewalk and down a nine foot embankment where it came to rest right side up.

To constitute 'wanton or wilful misconduct,' as used in our automobile guest statute, it must appear that the driver of the 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 result thereof his guest is injured. Lee Brothers v. Jones, 1944, 114 Ind.App. 688, 54 N.E.2d 108; Bedwell v. DeBolt, 1943, 221 Ind. 600, 50 N.E.2d 875. It is difficult to imagine a set of facts that more precisely meet the requirements of the above definition than do those of the present case. The appellant seems to feel that because he did everything in his power to avert the accident after he discovered its imminence, his conduct cannot be characterized as willful or wanton. That, however, is not the test. The question should be determined by a consideration of his whole course of conduct leading up to the accident and the inquiry will not be confined to occurrences at the immediate time and place thereof. Pierce v. Clemens, 1943, 113 Ind.App. 65, 46 N.E.2d 836.

It is next urged that damages in the sum of $5,000 are excessive and were prompted largely through prejudice against the appellant because he was a married man and was out on New Year's Eve with a woman who was not his wife. If such facts prejudiced the jury we are unable to say that such prejudice is reflected in the verdict. When the appellant's car pitched over the embankment above mentioned the appellee's head came in contact with the back portion of the front seat with such violence that his nose was torn from his face to the extent that it could be lifted up and one could see into his throat through the nasal pharynx. By reason of the proximity of the injury to his brain his nose was repaired without a general anesthetic. He was strapped to an operating table while this was done and suffered intense pain during the process. He was hospitalized six days and since the accident has developed a tic in the muscles of his eyelids which causes a constant blinking of the eyes accompanied by a dilation of the nostrils. His eyes water excessively and he suffers frequent severe headaches which have grown steadily worse since the accident. By reason of his physical condition he lost 66 days work in the first 18 months after the accident and the jury might reasonably have inferred, from the gradual worsening of his condition with the passage of time, that his periodic incapacity for work would occur indefinitely. His doctor bill was $300. We can find no prejudice in the verdict nor can we say, in these days of high prices and cheap money, that the $5,000 awarded the appellee represents anything more than monetary compensation for the injuries suffered.

During the course of the trial the appellant offered in evidence a written and signed statement executed by the appellee and alleged to contain admissions against his interests. Upon the appellee's objection the court rejected the document....