Michel v. Forde

• Decision Date: 26 June 1963
• Docket Number: No. 19654,No. 2,19654,2
• Citation: 135 Ind.App. 360,191 N.E.2d 507
• Parties: Faye MICHEL, Appellant, v. Ruth FORDE, Appellee
• Court: Indiana Appellate Court

Page 507

191 N.E.2d 507

135 Ind.App. 360

Faye MICHEL, Appellant, v. Ruth FORDE, Appellee.

No. 19654.

Appellate Court of Indiana, Division No. 2.

June 26, 1963.

Harry L. Gause, Howard J. DeTrude, Jr., of Armstrong, Gause, Hudson & Kightlinger, Indianapolis, for appellant.

Earl C. Townsend, Jr., John F. Townsend, Townsend & Townsend, Indianapolis, Richard L. Lagrange, Franklin, for appellee.

MOTE, Chief Justice.

This appeal comes to us from the Johnson Circuit Court from a judgment rendered on a jury verdict. The issues were formed by a third amended complaint for personal injuries growing out of an automobile collision with a building, and an answer in five paragraphs, under Rule 1-3.

Omitting the formal part, the complaint alleged:

'Comes now the plaintiff and for her cause of action alleges and says:

'1. That at all times mentioned herein New York Street was a paved public highway laid out in an east and west direction in Indianapolis, Marion County, Indiana.

'2. That at all times mentioned herein Sherman Drive was a paved public highway laid out in a north and south direction, intersecting said New York Street substantially at right angles at a point within Indianapolis, Marion County, Indiana.

'3. That on or about April 22, 1958, defendant employed plaintiff to sit with defendant in defendant's husband's 1956 Plymouth automobile while same was being driven by defendant.

'4. That defendant paid plaintiff the sum of Five Dollars ($5.00) per hour for said employment.

'5. That on said date at about 9:45 A. M. defendant operated said 1956 Plymouth automobile with plaintiff sitting in the front seat thereof in a southerly direction along said Sherman Drive and up to its intersection with New York Street.

'6. That at said time and place plaintiff was an employee of defendant acting within the course of her employment in that she was sitting in the car driven by defendant for the purpose of instilling confidence in defendant in her driving.

'7. That plaintiff was not assisting defendant in the operation of the said car.

'8. That when defendant arrived at said intersection defendant carelessly and negligently drove said automobile off of the highway and directly into the property located at 3816 East New York Street.

'9. That at said time and place defendant was careless and negligent in the operation of the vehicle which she was driving in the following respects, to-wit:

'A. Failed to drive on the highway and in fact drove off of the highway, across the sidewalk and into a house.

'B. Failed to keep her vehicle under control in that she accelerated the vehicle instead of applying the brakes when attempting to make a turn at said intersection.

'C. Failed to turn her vehicle along the public highway in attempting to negotiate a turn at New York Street and Sherman Drive.

'D. Drove at a speed that was high and unreasonable considering the fact that she was attempting to make a turn at an intersection, to-wit: thirty (30) miles per hour.

'10. That as a result of said collision plaintiff was injured in the following respects, to-wit:

* * *

* * *

'14. That all of said injuries and damages to plaintiff were proximately caused by the carelessness and negligence of the defendant as alleged in Rhetorical Paragraph 9 hereof.

'15. That plaintiff has been damaged thereby in the sum of One Hundred Thousand Dollars ($100,000.00).

'WHEREFORE, Plaintiff asks for a jury trial and that she be awarded verdict and judgment against the defendant in the sum of One Hundred Thousand Dollars ($100,000.00), costs, and all other proper relief in the premises.'

The first paragraph of answer was an admission and denial; the second alleged contributory negligence; the third, assumed risk; the fourth, joint control of the vehicle in a joint venture; and the fifth, as follows:

'Comes now the defendant, and for her fifth paragraph of answer, alleges and says:

'That at the time of the collision referred to in plaintiff's complaint the plaintiff was an employee of one Edward Forler, doing business as Indiana Driving School, and at all times referred to in plaintiff's complaint was acting for and on behalf of said school and within the scope of her employment with the said school.

'That the defendant had contracted with the said Indiana Driving School to furnish her driving instructions and the plaintiff was at all times, and at the time of the collision referred to in plaintiff's complaint working for the said driving school, an employee thereof, and was instructing the defendant for and on behalf of said driving school and as its employee.

'That the plaintiff, as such employee, on or about October 30th, 1958 and prior thereto, was bound by and accepted the provisions of the Workmens Compensation Act of the State of Indiana, and having received the benefits of said Workmens Compensation Act and compensation thereunder for the injuries referred to in plaintiff's complaint is precluded from recovering in this action against this defendant.

'That plaintiff's claim for compensation was and is her exclusive remedy.

'WHEREFORE, defendant prays that the plaintiff take nothing by her complaint and for all other proper relief in the premises.'

Upon rendition of judgment for appellee, plaintiff below, on the verdict of the jury, appellant filed a motion for new trial which was overruled. The errors assigned in this court, and relied upon for reversal, include sustaining of the motion to strike out said paragraph of answer to the third amended complaint, and the overruling of the motion for new trial.

Appellee has questioned the sufficiency of appellant's brief but a careful study thereof leads us to conclude that there has been a good faith effort and substantial compliance with the rules of our Supreme Court as to its preparation; and we are able fully to understand the issues and points raised therein. Guthrie v. Blakely et al. (1956), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d 357.

As revealed by the briefs, the significant facts disclose that appellee was a regular employee of Indiana Driving School and, as such, she was assigned to teach appellant how to drive, for which the said school was paid at the rate of five ($5.00) dollars per hour. After several one and two hours of lessons, appellant passed the examination and there was issued to her a driver's license; however, appellant continued to have a feeling of insecurity and lack of capability properly to drive, and particularly, her husband's automobile which had no driver trainer controls, and the employment was continued for further and additional instructions on April 21, 1958, and on April 22, 1958. This automobile was equipped with a standard, conventional transmission.

On April 22, 1958, when appellee was giving appellant a lesson, or was 'riding with her pupil', appellant drove east on 38th Street in the city of Indianapolis, thence south on Sherman Drive to the intersection with East New York Street, where she stopped to wait for traffic to clear that she might turn left to drive along East New York Street. It appears that appellant permitted the automobile which she then was driving to go too far to the south before she negotiated the turn.

In order to present the evidence concerning the collision itself and how it occurred, as well as to disclose the dominance of appellee, as an instructor, over appellant, this atatement extracted from appellant's brief, as testified to by appellee, follows:

'* * * I suggested that in going south we turn on New York Street. We were going to a Shell filling station * * * We were going to the Shell station because that is the kind of gas we use in the company car. We might have passed a Shell station between 38th and New York, but when I saw that her car was running hot that was the closest one. * * * We had no place in mind when we started south on Sherman. In plenty of time I decided to turn left before we got to New York Street. I can't say when I decided to turn left on New York Street. When we got into the intersection * * * She must have shifted into second in the intersection. I am not sure I told her to shift into second. I don't remember whether I did or not. After one or two or all of them went by she started to make her left turn. * * * she was overshot or was too near the south curb. When she started to pull into New York Street out of the intersection she was not to the parked car lane but just about to it. I mean the lane next to the curb on the south side of New York Street. * * * The right rear wheel of the car came in contact with the curb in reference to the intersection. It went over the curb at the corner of the intersection. I guess right at the corner. It went over the corner where it was rounded. When it went over the curb the car was right at the corner of the intersection. The front wheels did not go over the curb. * * * When the right rear wheel came over the curb the car was headed northeasterly. The car went past the intersection and came cata-cornered across. Not completely past the intersection but to the far side and then back. When I touched the wheel there was no car directly in front of us. I was helping her turn the corner. There was a car getting gas there in the gas station that we would have been headed for probably, or * * * There were cars parked there on New York Street. * * * That car was parked just beyond the gas station. A couple of car lengths perhaps east of the gas station. There are many feet in front of the gas station, for driving. Before I turned the wheel the rear end went over the curb. The car was heading in a northeasterly direction, not before I turned the wheel. Before I turned the wheel the car was headed towards the one in the gas station, it was headed southeasterly. When I grabbed the wheel we were perhaps eight to ten feet from the curb. The curb was south of the front end of the car. The car was heading southeasterly, heading right towards the curb. Before I grabbed the...