Ott v. Perrin

• Decision Date: 22 October 1945
• Docket Number: 17384.
• Citation: 63 N.E.2d 163,116 Ind.App. 315
• Parties: OTT v. PERRIN.
• Court: Indiana Appellate Court

63 N.E.2d 163

116 Ind.App. 315

OTT v. PERRIN.

No. 17384.

Appellate Court of Indiana, in Banc.

October 22, 1945

Appeal from Elkhart Circuit Court; Aldo J. Simpson, Judge.

Proctor & Proctor and Paul L. Myers, all of Elkhart, for appellant.

Guy W. Dausman and Robert B. Hartzog, both of Goshen, for appellee.

DRAPER Judge.

The appellee, plaintiff below, brought this action to recover damages for personal injuries sustained in an automobile accident. From a verdict and judgment for $5,000 the defendant below appeals.

Summarized the appellant relies for reversal upon the propositions that (1) the verdict of the jury is not sustained by sufficient evidence and (2) is contrary to law; (3) error in overruling appellant's motion for a directed verdict; (4) error in giving and refusing certain instructions; (5) error in the admission of certain evidence; and (6) excessive damages.

No demurrer was addressed to the complaint, which is in one paragraph, and no claim is made that it fails to state a cause of action, but the appellant insists the cause of action stated is one under the so-called 'Guest Statute', § 47-1021, Burns' 1940 Repl., and that the court erred both in instructing the jury solely upon the theory of common-law negligence and in permitting the appellee to recover upon that theory.

The complaint alleges, as to the relationship of the parties that at the time of the accident the plaintiff 'was riding with the defendant as the defendant's guest.' It nowhere alleges that the appellee was being transported without payment therefor. The only allegation of a breach of duty on the part of the appellant is that the defendant 'carelessly, negligently, wantonly and wilfully' failed to observe the warning of a stop sign, failed to bring his automobile to a stop, failed to look for approaching cars on an intersecting road, and drove directly into the path of an on-coming car.

A paragraph of complaint very similar, but still more suggestive of a case brought under the 'Guest Statute', was considered by our Supreme Court in Long v. Archer, 1943, 221 Ind. 186, 46 N.E.2d 818, 822, and was there held to state a cause of action on the theory of a common-law liability. We adopt the reasoning and adhere to the law of that case and hold that the complaint under consideration does likewise. As was said in the case last cited, 'A paragraph of complaint should proceed upon a single and definite theory and a defendant has a right * * * that it do so. It is not fatal to an action, however, that the complaint discloses two theories, where no steps were taken by the defendant to confine the pleadings to a single theory or to separate it into distinct paragraphs. * * * Since the second paragraph was good on the theory of common law negligence, it is unnecessary for us to consider whether it was also sufficient under the guest statute.'

If doubt exists as to what the theory of a complaint is, the court will determine it from the general scope and tenor of the pleading. Sickels et al. v. Aetna Securities Co. et al., 1942, 220 Ind. 347, 41 N.E.2d 947. Whatever theory the parties were proceeding on, the trial court submitted the case to the jury, justifiably, we think, on the theory that this was a negligence case.

The appellant bases most of his contentions under (4) above on the fact that the court refused to instruct on the theory of the 'Guest Statute', but on the contrary told the jury that the undisputed facts brought the case within the general rules of negligence. The undisputed evidence shows that the parties worked in the same plant and when the accident occurred the appellee was being driven to work by the appellant in the latter's automobile. This was pursuant to prearrangement between them whereby, on account of the gasoline shortage, they exchanged rides, the appellant sometimes furnishing and driving his car and the appellee sometimes doing the same, and this arrangement had been carried out for some weeks prior to the accident.

In the case of Liberty Mut. Ins. Co. v. Stitzle, 1942, 220 Ind. 180, 41 N.E.2d 133, 135, our Supreme Court said 'The word 'guest' has more of social than business significance. The words 'without payment for such transportation' imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is...