McKeown v. Calusa

• Decision Date: 27 January 1977
• Docket Number: No. 3--974A164,3--974A164
• Citation: 172 Ind.App. 1,359 N.E.2d 550
• Parties: John McKEOWN and Peggy McKeown, Plaintiffs-Appellants, v. Henry CALUSA and C & K Transport, Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 550

359 N.E.2d 550

172 Ind.App. 1

John McKEOWN and Peggy McKeown, Plaintiffs-Appellants, v. Henry CALUSA and C & K Transport, Inc., Defendants-Appellees.

No. 3--974A164

Court of Appeals of Indiana, Third District.

Jan. 27, 1977.

Rehearing Denied March 7, 1977.

Alexander Lysohir, Thomas H. Singer, Lysohir & Singer, South Bend, for plaintiffs-appellants.

Edward N. Kalamaros, Edward N. Kalamaros & Associates Professional Corp., South Bend, for defendants-appellees.

GARRARD, Judge.

McKeown brought suit for injuries received in an automobile collision. The court granted judgment on the evidence, Indiana Rules of Procedure, Trial Rule 50, against McKeown upon his count charging wilful and wanton misconduct by Calusa, the driver of the other vehicle. The jury returned a verdict for the defendants upon the count asserting negligence.

On appeal McKeown asserts judgment on the evidence was improperly granted regarding his claim of wilful and wanton misconduct, and that the court erred in refusing a requested instruction regarding wilful and wanton misconduct. Secondly, he assigns error in an instruction given by the court regarding the statute, IC 1971, 9--4--1--75(c), applicable to motor vehicle drivers making left hand turns. We affirm.

The evidence disclosed that Calusa was driving a tractor trailer belonging to C & K Transport westbound on U.S. Highway 20, a four lane highway. As Calusa approached the intersection of Indiana High-way 149, the traffic light which controlled the intersection turned green for traffic on U.S. 20. Seconds later Calusa collided with an automobile driven by McKeown, which was attempting to turn left from eastbound U.S. 20 onto northbound Ind. 149. McKeown argues there was sufficient evidence to permit the jury to infer that Calusa observed McKeown's attempted turn in sufficient time to have avoided the collision. Thus, he asserts the jury should have been permitted to determine whether Calusa's conduct was wilful or wanton so as to overcome the bar of any contributory negligence.

I. Standard of Review

Indiana cases dealing with judgment on the evidence are consistent in the results reached. However The language employed in articulating the standard of review is somewhat confusing and apparently inconsistent. ¹ Compare, e.g., the Court of Appeals and Supreme Court opinions in Miller v. Griesel (1973), Ind.App., 297 N.E.2d 463, transferred (1974), 261 Ind. 604, 308 N.E.2d 701, with those in Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849; and Vernon Fire & Cas. Ins. Co. v. Sharp (1976), Ind., 349 N.E.2d 173.

What the case clearly suggest, however, is that the court is not free to indulge in the fact finder's function of weighing the evidence and resolving credibility determinations to grant a judgment on the evidence. On the other hand, unless there is some evidence of probative value (i.e., carrying the quality of proof and having fitness to induce conviction) upon each element of the claim, the motion is properly granted.

Evidence, of course, is direct or circumstantial. There is normally little difficulty in determining whether direct evidence of probative value has been adduced upon an issue. The problem arises in the area of circumstantial evidence. If the ultimate fact in question exists as a reasonable inference from the circumstantial evidence, a TR 50 motion should be denied. Conversely, if the circumstantial evidence fails to create a reasonable inference of the ultimate fact, but merely leaves the possibility of its existence upon for surmise, conjecture or speculation, then there is no evidence of probative value as to that ultimate fact, and the motion may be granted. As Judge Buchanan stated in Mamula, the trick is to tell the difference, and the answer depends upon the facts and circumstances of a given case.

II. Wilful and Wanton Misconduct

The rule is well established that contributory negligence is no defense when injuries are wilfully inflicted. Steinmetz v. Kelly (1880), 72 Ind. 442. Moreover, conduct evincing a lesser degree of culpability will also preclude the defense. Such conduct has been variously labeled 'constructive wilfulness,' 'wanton' or even 'reckless.' Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 34 N.E. 504; Brannen v. Kokomo G. & J. G.R. Co. (1888), 115 Ind. 115, 17 N.E. 202; Palmer v. Chicago, St. L. & P.R. Co. (1887), 112 Ind. 250, 14 N.E. 70. See, also, Hoesel v. Cain (1944), 222 Ind. 330, 53 N.E.2d 165; Kizer v. Hazelett (1943), 221 Ind. 575, 49 N.E.2d 543.

Constructive wilfulness may be found in the commission of an intentional act which is done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time. ² See, Brannen, supra, and Brooks v. Pittsburgh C.C. & St. L. Ry. Co. (1902), 158 Ind. 62, 62 N.E. 694; Conner v. Citizens St. R. Co. (1896), 146 Ind. 430, 45 N.E. 662; Pittsburgh C.C. & St. L. Ry. Co. v. Ferrell (1906), 39 Ind.App. 515, 78 N.E. 988.

It may also occur, however, from an omission or failure to act. Under such circumstances liability may be predicated upon the actor's failure to alter or cease an action under his control when he has actual knowledge of the natural and probable consequence of injury and of his opportunity to avoid the risk. See, Parker, supra; Palmer, supra; Cleveland C.C. & St. L. Ry. Co. v. Miller (1898), 149 Ind. 490, 49 N.E. 445; Lake Erie & W.R. Co. v. Brafford (1896), 15 Ind.App. 655, 43 N.E. 882.

In modern tort law, claims of constructive wilfulness based upon a failure to act have been largely supplanted by the doctrine of last clear chance. Both concepts seek to avoid the legal consequences of a plaintiff's own negligence.

Judge Hoffman has summarized last clear change as requiring:

'1) The defendant had actual knowledge of the plaintiff; 2) The defendant knew of the plaintiff's perilous position; 3) The defendant had physical control over the instrumentality and had the last opportunity through the exercise of reasonable care to avoid the injury; and 4) The plaintiff was oblivious to his own danger, notwithstanding his own contributory negligence.' (citations omitted) National City Lines, Inc. v. Hurst (1969) 145 Ind.App. 278, 282, 250 N.E.2d 507, 510.

The final requirement is also satisfied where the plaintiff, although aware of his position, is unable to extricate himself from the peril. See, Stallings v. Dick (1965), 139 Ind.App. 118, 210 N.E.2d 82.

While it may be that in attempting to assess legal fault in these situations we are essentially viewing the same coin from different sides, the doctrines have employed different rationales which may lead to differing conclusions. Compare, Prosser, Law of Torts (4th Ed.) § 65, p. 426, and & 66, pp. 427--8; and Krenzer v. Pittsburg C.C. St. L. Ry. Co. (1898), 151 Ind. 587, 52 N.E.2d 220.

Indiana has generally deemed last clear chance a doctrine of causation. It is said that when applicable the defendant's 'final negligence' is to be considered the sole proximate cause of the injury. See, Bates v. Boughton (1972), 151 Ind.App. 139, 278 N.E.2d 316.

On the other hand, constructive wilfulness cases are concerned with establishing the subjective state of mind of the defendant, i.e., that under the circumstances his omission to act evidence not merely negligence but a willingness that the plaintiff be injured. The distinction between constructive wilfulness and mere negligence depends upon the actor's state of mind. To focus upon the distinction the cases have utilized the so-called presumption of self-preservation. It is presumed that a person is capable of and will exercise normal ability to remove himself from a perilous position due to motives of self-preservation. Terre Haute, etc. R.R. Co. v. Graham (1874), 46 Ind. 239. A defendant has the benefit of this presumption in gauging his actions. Thus, in the absence of some knowledge on the part of the defendant that the plaintiff will not, or cannot, extricate himself, the necessary intent for constructive wilfulness is not established. Palmer v. Chicago St. L. & P.R. Co. (1887), 112 Ind. 250, 14 N.E. 70.

Thus, given the presence of the other necessary elements, a contributorily negligent plaintiff may recover from a defendant under last clear chance if in fact the plaintiff was oblivious to his own danger or was unable to extricate himself when the defendant had the 'last' opportunity to avoid the injury. To recover for constructive wilfulness under similar circumstances, not only must the plaintiff have been unaware or unable to avoid the injury, but the evidence must establish defendant's knowledge of facts sufficient to reasonably implythat he knew the plaintiff would not extricate himself.

Turning to the case before us, there was no evidence that Calusa intentionally (wilfully) injured McKeown and judgment on the evidence was correct as to that allegation. With respect to the charge of wantonness (constructive wilfulness), McKeown points to evidence from which it might be inferred that Calusa increased, or at least maintained, his established rate of speed at a time when he was aware of McKeown's peril and could have applied his brakes effectively.

Without reciting in detail the evidence pointed to, we recognize that it might have been sufficient under the standard of appellate review to avoid a judgment on the evidence. However, we hold the error, if any, was rendered harmless by the jury's verdict.

The same conduct on the part of Calusa constituted the basis for both counts of the complaint. On the count charging negligence, the issue was submitted to the jury under proper instructions setting forth the doctrine of last clear chance. When the jury found for Calusa on the negligence claim despite the instruction on last...