Sausaman v. Leininger
| Decision Date | 14 December 1956 |
| Docket Number | No. 18770,18770 |
| Citation | 138 N.E.2d 378 |
| Parties | Jack E. SAUSAMAN, Appellant, v. Byron LEININGER, Appellee. * . In Banc |
| Court | Indiana Appellate Court |
Cole, Wildman & Cole, R. J. Wildman, Peru, Alfred H. Plummer, Wabash, for appellant.
Arthur Metzler, Charles C. Campbell, Rochester, for appellee.
For majority opinion, see 137 N.E.2d 547.
I cannot agree with the majority opinion in this case. Since this court is required, in passing upon the appellant's assignment of errors, to consider the record in the light of the evidence most favorable to appellee, and the inferences to be drawn therefrom, it appears to me from an examination of the record and the briefs that there was a searching of the record to set forth verbatim testimony favorable to the appellant in the majority opinion.
What are the facts in the record before us considered in the light of the evidence most favorable to the appellee as such evidence is set forth in the briefs?
The appellant, who lacked a month of being eighteen years old, was driving an automobile owned by his uncle, which was used by the appellant for pleasure purposes. He took some of his friends and acquaintances, one of whom was the appellee, on a pleasure drive out through the country from the town of Akron, and for the additional purpose, as he stated, to warm the car up preparatory to putting anti-freeze in the radiator; that in returning to Akron after a drive on county roads and State Road 14 and State Road 19 the appellant drove in a southerly direction on State Road 19. When he was a half-mile north of the city limits the car was being driven from fifty to sixty-five miles per hour, and as he approached the city limits, as the car was going between forty to fifty miles per hour, the appellant pulled out the ignition key and the car started to coast. The car in question was a 1938 Ford Tudor and had a toggle switch to turn the ignition on and off, and there was a key that locked the ignition in off position, and when the key was removed there was a pin that would fit in the hole in the steering column and lock the wheel when the wheel was turned (my emphasis) to a certain position. As it is clearly set forth on page nine of the appellee's brief, and on page ten of appellant's brief, and completely supported by record, 'the evidence of Max Barnett shows that it was the turn of the car that locked the steering wheel, and the car would not have hit the tree had the wheels not been turned'.
Furthermore, the majority opinion recites that This testimony is contrary to the testimony of Max Barnett which the court had a right to believe and accept, and is a contrary inference to that drawn by the trial court. This inference, I do not believe, this court had a right to make and use as a basis for reversing the judgment of the lower court.
The appellant himself testified that he knew the car was of a type that when the ignition key was pulled out the steering wheel was supposed to lock. He further testified that from the time he bought the car until the day of the accident he took the key out when he drove the car once (my emphasis), and possibly more. The lower court had the right to assume that he had knowledge when the switch key was removed that the car would lock and that on only one occasion, [possibly more], he had taken the key out when he was driving the car.
The appellant made other statements regarding the use of this key and the ignition switch, indicating a much wider experience with the locking propensities of this particular lock, but it was the sole province of the trial court to weigh his testimony and to decide what part of it the court would believe and what part of it the court would disbelieve. Therefore, in my opinion, the majority has erred in setting forth verbatim from the transcript such testimony which would indicate that the appellant had 'tried the ignition key many times (my emphasis) and had found that the lock did not work'. In this it seems clear to me that this court has weighed the evidence and substituted its judgment for that of the trial court on a question of fact to a marked degree, and the lower court had the right to draw the conclusion that he had removed the key on only one occasion, possibly more.
The theory of appellant's case, substantiated in the majority opinion, is predicated upon the fact that the appellant was guilty of a 'mistake in judgment' rather than a course of wilful and wanton misconduct in removing the ignition key and attempting to coast into town. Such theory of mistake in judgment had to be based upon the premise that since he had removed the key once, and possibly more, and found that it did not lock the wheels as it was supposed and manufactured to do, that he had a right to rely on such knowledge and assume that the removal of the ignition key did not lock the wheels even though he knew that the car had been manufactured to accomplish such purpose, and when he removed the ignition key and coasted into the town of Akron and the wheels became locked and the car crashed into a tree causing the most serious injuries to all of the occupants of the car, he had only made a 'mistake in judgment'.
The appellant admitted that he was operating the car at a speed of thirty miles per hour when his car struck the tree. Also, the following testimony of the appellant is found in the record and is set forth in substance in appellee's brief:
'
When the turn was made some one hundred feet from the tree the steering wheel was locked, the car was moving toward the tree, and the appellant knowingly and consciously permitted the car to travel that entire distance until it hit the tree without his making any effort to apply the brakes. This latter conduct on the part of the appellant would have been sufficient to show that he heedlessly and with a consciousness of conditions obtained through the exercise of his senses and knowledge of a likelihood of an injury to his guests as a result of his conscious acts failed to apply the brakes.
The definition of what is necessary in order to establish wilful and wanton misconduct...
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