Long v. Archer

• Decision Date: 01 March 1943
• Docket Number: 27800.
• Citation: 46 N.E.2d 818,221 Ind. 186
• Parties: LONG v. ARCHER et al.
• Court: Indiana Supreme Court

46 N.E.2d 818

221 Ind. 186

LONG v. ARCHER et al.

No. 27800.

Supreme Court of Indiana

March 1, 1943

Hemphling & Smith, of South Bend, for appellant.

Robert H. Moore and Frank L. Greenwald, both of Gary, and Reidelbach & Spangler, of Winamac, for appellee.

SHAKE Judge.

This appeal resulted from an action for personal injuries brought by the appellee Vina Archer against the appellant Fred W Long and the appellee Walter Laws. The complaint was in three paragraphs, which are denominated in the record as the amended second, the amended third, and the fourth, but for convenience we shall refer to them, respectively, as the first, second, and third paragraphs

Hoffman Street extends east and west and Columbia Avenue north and south, intersecting at right angles, in the city of Hammond. By a city ordinance, Hoffman Street was a preferential thoroughfare, and there were appropriate stop signs indicating that fact to those using Columbia Avenue. The appellee Archer was in an automobile operated by appellant Long, which was proceeding south on Columbia Avenue. That car collided in the intersection with one driven east on Hoffman Street by the appellee Laws, resulting in personal injuries to the appellee Archer.

The first paragraph of the complaint alleged that Mrs. Archer was a 'passenger' in Long's automobile but that she exercised no management over it or over him; that with wilful, wanton, and reckless disregard of the rights of others, and over her request to discontinue and desist, Long drove his automobile into said intersection at a speed which was high and dangerous considering the density of the traffic, the atmospheric conditions, and the location and width of the street and intersection; and that Long drove said automobile into said intersection without stopping having said automobile under reasonable control, keeping a lookout for approaching traffic on Hoffman Street, or yielding the right of way to such traffic. The first paragraph further charged the appellee Laws with specific acts of negligence in the operation of his automobile, and it was alleged that the plaintiff's injuries resulted from each of the wilful, wanton, and reckless acts of Long and each of the negligent and careless acts of Laws.

The second paragraph of complaint was substantially like the first, except that it was charged in the second that the plaintiff occupied the automobile of Long as his 'guest', at his special instance, invitation, and request, and without payment for transportation. It was also alleged in the second paragraph that the plaintiff's injuries were caused by the wilful, wanton, and reckless acts of Long, and the negligent and careless acts of Laws 'jointly operating and concurring together.'

The third paragraph was the same as the first, except that it charged that the plaintiff was in the employ of Long and that she was engaged in the performance of the duties of her employment at the time she was injured.

There was a jury trial resulting in a verdict against the appellee Long and in favor of Laws. The jury also answered interrogatories by which it found that the plaintiff was in the employ of Long and that she was acting in the course and scope of her duties as such at the time of the accident; that Long approached and entered the intersection at a speed of approximately thirty (30) miles per hour, without slowing down and without looking for approaching traffic on Hoffman Street, although he was warned of the stop sign by the plaintiff and saw it in time to have stopped before reaching the intersection; and that, in the exercise of reasonable care, Long could have seen the approach of the Laws car in time to have stopped before entering the intersection. The jury also found that Long was guilty of wilful and wanton misconduct as charged in the first and second paragraphs of complaint.

The appellant Long addressed a joint demurrer for want of facts to the first and second paragraphs of complaint prior to the adoption of Rule 1-6, 1940 Revision. There was no error in overruling this demurrer, unless both paragraphs of the complaint were bad. Dorsett v. City of Greencastle, 1894, 141 Ind. 38, 40 N.E. 131. The ground for the demurrer set out in the memorandum thereto was that the complaint alleged that the plaintiff was the guest of Long; that as a consequence, Long could not be held liable unless he was guilty of wanton and wilful misconduct; and that while the allegations were sufficient to charge negligence, they did not constitute wanton and wilful misconduct. The first paragraph of the complaint alleged merely that the plaintiff was a 'passenger' in Long's car. The statute provides that the owner or operator of an automobile shall not be responsible for injuries to or death of a guest, while being transported without payment therefor, unless such injuries or death were caused by wanton or wilful misconduct. Acts 1937, ch. 259, § 1, § 47-1021, Burns' 1940 Replacement,§ 11265, Baldwin's Supp.1937. The use of the term 'passenger' in the first paragraph of the complaint, as describing the relationship between the plaintiff and the appellant, does not necessarily imply that the plaintiff was a guest in the contemplation of the statute. In Puckett v. Pailthorpe, 1929, 207 Iowa 613, 223 N.W. 254, 256, it was said:

'There are two main elements in the legal definition of a passenger: First, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger.'

The term 'passenger' ordinarily imports some contractual relation between the parties. Gale v. Wilber, 1934, 163 Va. 211, 175 S.E. 739. Bushouse v. Brom, 1941, 297 Mich. 616, 298 N.W. 303. We cannot say, as a matter of law, that the first paragraph of complaint alleged that the plaintiff was a guest within the meaning of the statute, but it disclosed the existence of some relationship that imposed upon the appellant the duty to exercise ordinary care toward and with respect to the plaintiff. If the appellant desired the complaint to be made more specific as to the relation of the plaintiff to him he should have moved that this be done. There was no error in overruling the joint demurrer to the first and second paragraphs of complaint.

Before the trial the appellant made a motion to require the plaintiff to elect as between the three paragraphs of complaint the one upon which she would stand. This motion was renewed at the close of the plaintiff's evidence and again after all the evidence was in. The basis of these motions was the same; namely that the theories of the several paragraphs of complaint were inconsistent with respect to the relationship alleged to have existed...