McClure v. Austin, 372A133

• Decision Date: 15 June 1972
• Docket Number: No. 372A133,372A133
• Citation: 152 Ind.App. 398,283 N.E.2d 783
• Parties: Dean McCLURE, Administrator of Estate of Judith Ann McClure Herdrich, Deceased, Plaintiff-Appellant, v. Sandra K. AUSTIN, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 783

283 N.E.2d 783

152 Ind.App. 398

Dean McCLURE, Administrator of Estate of Judith Ann McClure

Herdrich, Deceased, Plaintiff-Appellant, v. Sandra K. AUSTIN, Defendant-Appellee.

No. 372A133.

Court of Appeals of Indiana, Third District.

June 15, 1972.

Kenneth A. King, Kendallville, for plaintiff-appellant.

William E. Borror, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for defendant-appellee.

HOFFMAN, Chief Judge.

The primary issue raised by this appeal is whether there was any evidence presented showing that defendant-appellee Sandra K. Austin was guilty of wanton or wilful misconduct.

The plaintiff, as Administrator of the Estate of Judith Ann McClure Herdrich, filed his amended complaint for the wrongful death of Judith Ann McClure Herdrich. The amended complaint alleged, inter alia, that the plaintiff's decedent was a passenger and guest in a car driven by the defendant Sandra K. Austin, and that she was killed in an automobile accident caused by the wanton and wilful misconduct of the defendant in the following particulars:

'a. That she (defendant-Austin) crossed the center line of U.S. #30 and was driving on the wrong side of the road;

'b. That the way was clear and she (defendant-Austin) could see the approaching car, but continued to drive on the wrong side of the road;

'c. That defendant was exceeding the speed limit when the pavement was wet and slippery;

'd. That defendant had worked all day at Essex Wire Corp., In Ligonier, Indiana, and was tired and sleepy while operating said automobile.'

Trial was to a jury and the following facts are summarized from the testimony contained in the record before us:

Plaintiff-appellant, the father of Judith Herdrich, testified that on the evening of June 16, 1967, Sandra K. Austin came to his house to visit his daughter and take her to Fort Wayne shopping. He testified that he said to Sandra Austin, '(T)he weather condition looks very bad * * * and I forbid you to go.' He testified that one of the reasons he told her not to take his daughter was that 'she (Sandra Austin) appeared tired because it was a hot, sultry, humid day and she had worked all day * * *.' The plaintiff also testified that he left the house at approximately 7:00 P.M. and the two girls were still 'home.'

At approximately 7:35 P.M. there was a two-car collision on U.S. Highway 30 in Allen County. One of the investigating police officers testified that there had been a rain, but when he got there 'it had quit or was in a slight drizzle.' He testified that the highway was flat and level, marked down the centerline, and 24 feet wide.

A State police officer who was at the scene of the accident testified that there were 76 feet of skid marks in the eastbound lane, and that the vehicle driven by Sandra K. Austin had crossed the centerline into the eastbound lane 108 feet east of the impact point. He testified that he asked Sandra Austin what happened at the scene, and that she said 'she didn't know.' He also testified that from the damage done to the vehicles he estimated that both vehicles were 'traveling at approximately 40 miles per hour.' He was subsequently asked the following questions:

'Q. What I'm trying to suggest is: can you tell this Jury how the accident happened or can't you?

'A. The only thing that I can state is that the '67 Mustang drove or skidded left of center on a wet road for some unknown reason and struck the other car head on, in which two people died as a result.

'Q. But you have no evidence of what caused it to skid left?

'A. No, Sir.'

At the close of plaintiff's evidence, defendant-Austin moved for a judgment on the evidence. Such motion was sustained by the trial court and judgment was entered thereon. The motion to correct errors filed by the plaintiff-appellant was overruled by the trial court and plaintiff has brought this appeal.

The primary issue presented for this court's review is whether there is any evidence or reasonable inferences therefrom showing wanton or wilful misconduct on the part of defendant-appellee Sandra K. Austin.

The judgment on the evidence entered by the trial court may only be affirmed if there is a total absence of evidence or reasonable inferences therefrom in favor of the plaintiff upon the issues. If there is any probative evidence or reasonable inferences drawn from the evidence, or if the evidence is such that the minds of reasonable men might differ, then the judgment on the evidence is improper. Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315; Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734.

Liability is sought to be imposed upon the defendant in the instant case under IC 1971, 9--3--3--1, Ind.Ann.Stat. § 47--1021 (Burns 1965), which reads as follows:

'Guest of owner or operator--Right to damages.--The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.'

In Tuttle v. Reid, et al. (1966), 247 Ind. 375, at 379--380, 216 N.E.2d 34, at 36, is found the following language:

'In regard to 'wanton and wilful' misconduct on the part of the operator of a motor vehicle, this court has said as follows:

"Accordingly, the foregoing decisions are consistent with the proposition that the misconduct of a host driver, in order to bring it within the purview of the guest statute ( § 47--1021), supra, must be committed while the driver is possessed of a mental attitude with respect to both his driving and his guest, which is adverse to the welfare of his guest. This mental attitude is necessary if the conduct of the operator is to be described as being either 'wanton or wilful' misconduct.

"As stated * * * in the concurring opinion of Brown v. Saucerman, supra 237 Ind. 598, at page 619, 145 N.E.2d 898, at page 907:

"'To be guilty of wanton misconduct within the meaning of the statute ( § 47--1021, supra), the driver must (1) be conscious of his misconduct; (2) be motivated by a desire to assert himself or his interests above or beyond, or in reckless indifference for, the safety of his guest, and (3) he must do so knowing that his conduct subjects them to a * * * probability of injury.' (Our italics.)' Clouse, etc. v. Peden (1962), 243 Ind. 390, 396, 397, 186 N.E.2d 1, 3, 4.

'And as said in Reynolds, Admtrx., etc. v. Langford, supra, at pages 438, 439 of 241 Ind., at page 870 of 172 N.E.2d, as follows:

"The rule as to what is necessary to show 'willful or wanton' misconduct is succinctly stated in Bedwell v. DeBolt, supra, 1943, 221 Ind. 600, at page 607, 50 N.E.2d 875, at page 878, as follows:

"'To hold one guilty of 'wilful' or 'wanton' conduct, it must be shown that he was conscious of his conduct and with knowledge of existing conditions that injury could probably result, and with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some duty which produced the injuries.' * * *"

See also: Brueckner v. Jones (1970), Ind.App., 255 N.E.2d 535, 20 Ind.Dec. 315 (transfer denied); Schwing v. McKibbin (1970), Ind.App., 264 N.E.2d 629, 24 Ind.Dec. 35 (transfer denied); Mazza v. Kelly (1970), Ind.App., 258 N.E.2d 171, 21 Ind.Dec. 313.

In Brueckner v. Jones, supra, Ind.App., at 543 of 255 N.E.2d, it is stated:

'Since 1937 the Indiana Supreme and Appellate Courts have laid down certain guidelines for the lower courts to follow in evaluating guest cases. An examination of these authorities indicates:

a. An error of judgment or a mistake standing alone, on the part of the host, will not amount to wanton or wilful misconduct.

b. The host must have manifested an attitude adverse to the guest, or of 'perverseness', in that the host must have shown he was indifferent to the consequences of his conduct.

c. The entire course of conduct of the host leading up to the accident must be considered.

d. The host must have had actual knowledge of danger confronting the guest.'

Appellant relies heavily on the case of Cheek v. Hamlin (1972), Ct.App., 277 N.E.2d 620, 29 Ind.Dec. 16. A careful reading of Cheek indicates that many of the facts upon which that decision turns have not been presented in the case at bar. In Cheek Ct.App., at 625 of 277 N.E.2d, it is stated:

'We are of the opinion that, as the saying goes, 'Every tub must set on its own bottom.' In other words, each case involving willful or wanton misconduct must be decided and must turn on the circumstances as shown by the evidence to be particularly peculiar or unique to the case. Every act entering into the particular transaction must be considered and weighed in connection with all the other circumstances.'

Appellant contends that Sandra K. Austin possessed the requisite 'perverseness' because she ignored his command not to go because '(t)he weather condition looks very bad * * *' and because she was tired after working on a hot, sultry, humid day from 6:00 A.M. to 2:20 P.M.

In Sausaman v. Leininger (1957), 237 Ind. 508, at 514, 146 N.E.2d 414, at 418, it was held:

'We concur in the fact that to constitute 'willful or wanton misconduct' there must be a 'perverse motive,' in that the misconduct must be conscious and intentional and of such a nature that under the known existing conditions injury will probably result therefrom. However, as heretofore stated, this does not mean that the wrongful conduct of the driver must be motivated by malice, ill will, or intent to injure.'

In the instant case, we have examined the entire course of conduct of the parties and find no legitimate inferences of wanton or wilful misconduct. The evidence is that Sandra K. Austin disobeyed the command of the plaintiff and drove in the...