Stillwell v. Adams, 19736

• Decision Date: 07 October 1963
• Docket Number: No. 2,No. 19736,19736,2
• Citation: 193 N.E.2d 74,135 Ind.App. 495
• Parties: John STILLWELL, Appellant, v. Kenneth ADAMS, Appellee
• Court: Indiana Appellate Court

Page 74

193 N.E.2d 74

135 Ind.App. 495

John STILLWELL, Appellant, v. Kenneth ADAMS, Appellee.

No. 19736.

Appellate Court of Indiana, Division No. 2.

Oct. 7, 1963.

Rehearing Denied Nov. 12, 1963.

Transfer Denied Jan. 6, 1964.

See 194 N.E.2d 806.

Roland Obenchain, Jr., Douglas D. Seely, Jr., South Bend, for appellant.

David L. Matthews, South Bend, for appellee.

MOTE, Chief Justice.

This is an action for damages incurred by appellee in an automobile collision which occurred while appellee was riding as a guest passenger in appellant's car. A jury trial resulted in a verdict and judgment for appellee in the sum of fifteen thousand ($15,000.00) dollars.

It appears that appellant and appellee, prior to the accident, had visited several taverns in South Bend and each had consumed several bottles of beer. At approximately one o'clock in the morning, the two men decided to go to a restaurant to obtain some food. While enroute to the restaurant, appellant attempted to make a left turn and crashed into a pillar of a viaduct.

The case was tried on appellee's amended complaint, which alleged that appellee suffered injury in the accident and that the accident was caused by the appellant's wanton and wilful misconduct.

The appellant assigns as error the trial court's overruling of his motion for new trial, and in support thereof, among other things, he contends that after the jury had been selected and sworn, and before the opening statements of the parties, the court erred in giving the following preliminary instruction:

'Negligence which renders one liable to another who is injured thereby is the doing of some act or thing which it is his duty to refrain from doing; or the failing to do some act or thing which it is his duty to do. Or, to put it in other words, the doing of something which a reasonably careful and prudent person would not have done under the same or like circumstances, or the failing to do something which a reasonably careful and prudent person would have done under the same or like circumstances, constitutes negligence; and where such negligent act is done or omitted, and by reason of it another suffers injury therefrom, such negligent person it liable to the injured person, he being without fault.'

over appellant's objection, as follows:

'The Defendant objects and excepts to the giving of Instruction Number Four by the Court on its own motion for the reason that the instruction in its present form purports to define the word 'negligence,' and then states that where a negligent act is done or omitted, and that by reason of it, where another suffers injuries, such negligent person is liable to the person. This is a guest case under the Indiana Statutes relating to the liability of a host-driver to his guest passenger. There is no basis in law for the finding of liability on the part of a host on simple negligence. The instruction, therefore, tends to confuse the jury and indicate to them that upon a finding of negligence, liability can be predicated upon the defendant in this action.'

In pursuance of Supreme Court Rule 1-7A, the trial court was required to give preliminary instructions 'as to the issues for trial,' etc., and inasmuch as there were no issues tendered by the pleadings which concerned negligence, we think that the giving of such instruction constituted prejudicial error. Hayes Freight Lines, Inc. et al. v. Wilson (1948), 226 Ind. 1, 77 N.E.2d 580; Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Case (1910), 174 Ind. 369, 91 N.E. 238; Hoesel v. Cain et al.; Kahler v. Cain et al. (1944), 222 Ind. 330, 53 N.E.2d 165.

It has been asserted that this claimed error has not been properly presented, and if it is, then other instructions tendered by appellee and given by the court cured the harmful effect of said instruction. In view of the conclusion we have reached it is not necessary for us to, and we do not decide if such assertion is correct. It is enough to state, we think, that where the question is properly presented the giving of an instruction defining negligence as a preliminary instruction, when the action and issues are predicated upon the guest statute, so-called, hereinafter quoted, in and of itself is prejudicially harmful and erroneous.

However, we are not required to base our decision solely on the issue of the claimed erroneous instruction. The appellant also assigns as error, under the trial court's overruling of his motion for new trial, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.

The case is within the provisions of § 47-1021, Burns' 1952 Replacement, which reads as follows:

'47-1021. Guest of owners or operators--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.' [Acts 1929, ch. 201, § 1, p. 679; 1937, ch. 259, § 1, p. 1229.]

The definition of wanton or wilful misconduct is set forth in Becker v. Strater (1947), 117 Ind.App. 504, 72 N.E.2d 580, as follows:

'Willful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that injury will probably result. Bedwell v. De Bolt, 1943, 221 Ind. 600, 50 N.E.2d 875; Hoesel v. Cain, 1943, 222 Ind. 330, 53 N.E.2d 165, 679; Swinney v. Roler, 1943, 113 Ind.App. 367, 47 N.E.2d 486; Lee Brothers v. Jones, 1944, 114 Ind.App. 688, 54 N.E.2d 108.'

The burden was upon appellee, as plaintiff below, to show by a preponderance of the evidence that appellant was conscious of his conduct and, with knowledge of existing conditions that injury would probably result, he consciously and intentionally did some wrongful act or omitted some duty which produced the injury. Brown v. Saucerman (1958), 237 Ind. 598, 145 N.E.2d 898; Bedwell v. De Bolt (1943), 221 Ind. 600, 50 N.E.2d 875.

Under the new trial motion specification, we must examine the evidence to determine if there is any evidence or reasonable inference to be drawn therefrom...