Trent v. Rodgers, 18131

• Decision Date: 31 March 1952
• Docket Number: No. 18131,18131
• Citation: 104 N.E.2d 759,123 Ind.App. 139
• Parties: TRENT v. RODGERS.
• Court: Indiana Appellate Court

Page 759

104 N.E.2d 759

123 Ind.App. 139

TRENT v. RODGERS.

No. 18131.

Appellate Court of Indiana, in Banc.

March 31, 1952.

Gambill, Dudley & Cox, Terre Haute, for appellant.

Mann, Stohr & Mann and Hansford C. Mann, all of Terre Haute, for appellee.

BOWEN, Chief Judge.

This is an appeal from a judgment in an action for damages for alleged personal injuries brought by the appellee who sustained such injuries while riding as a guest in a motor vehicle operated by the appellant.

Issues were formed on appellee's complaint in one paragraph which set forth five acts of alleged willful and wanton misconduct.

Appellant filed a demurrer to appellee's amended complaint, which demurrer was overruled, and the appellant filed answer in one paragraph, which admitted plaintiff was riding as a guest in such automobile driven by appellee and denied the other allegations of the complaint.

The cause was submitted to a jury which returned a verdict in favor of appellee and against appellant in the sum of $1,600, and judgment was rendered thereon.

Errors assigned for reversal in this court are that the court erred in overruling appellant's motion to strike out parts of appellee's complaint; that the court erred in overruling appellant's motion for a directed verdict at the close of appellee's evidence, and that the court erred in overruling appellant's motion for a directed verdict at the close of all of the evidence, and that the court erred in overruling appellant's motion for a new trial.

The overruling of a motion to strike out part of a pleading ordinarily is not reversible error, even though such action be erroneous. Heinrich v. Ellis, 1943, 113 Ind.App. 478, 48 N.E.2d 96; Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456; Holloway v. Thompson, 1942, 112 Ind.App. 229, 42 N.E.2d 421. From an examination of the whole record we must conclude that appellant's first assignment of error is not tenable. American Income Ins. Co. v. Kindlesparker, 1942, 110 Ind.App. 517, 37 N.E.2d 304; Butt v. Iffert, 1909, 171 Ind. 554, 86 N.E. 961; Flanagan's Pleading and Procedure, § 126, page 181, and cases therein cited; 2 Lowe's Revision Works' Indiana Practice, § 23.30, page 127.

Appellant further contends that the court erred in overruling appellant's motion for a directed verdict at the close of appellee's evidence. This assignment was waived by the introduction of evidence thereafter by the appellant in his behalf. The Baltimore, etc., R. W. Co. v. Conoyer, 1898, 149 Ind. 524, 48 N.E. 352, 49 N.E. 452; Indiana Insurance Co. v. Handlon, 1940, 216 Ind. 442, 24 N.E.2d 1003.

Appellant also contends that the court erred in overruling appellant's motion for a directed verdict at the close of all of the evidence. In support of this assignment, the appellant contends that there is no evidence in the record which shows that the appellant was guilty of any willful or wanton misconduct as the same has been defined in this state.

From the evidence in the record, it appears that appellant took the appellee to a tavern for a social evening, and while they were there, appellee spoke to a man for whom she had formerly worked; that appellant left her while she was speaking to this man and his wife and went on back to the table where the appellant and appellee had been sitting, and sat down. He immediately started accusing appellee and berating her about talking to her former employer, insisting that he was more than just an employer. They sat there for some time and kept quarreling, appellant accusing appellee of many things, and saying she had no business shaking hands with the man and talking to him, and they continued arguing until they left the place. They drove immediately to the scene of the collision in the business district of Terre Haute. Appellee told appellant 'If you are going to the Rose Room I would like to go home, I don't wish to go.' Appellant immediately swung the truck to the left into an alley and backed it into a south bound car. The impact threw appellee's head against the back window of the car smashing it and then forward against the dashboard and appellee was thereby injured. Immediately following the collision, appellant got out of the truck 'cussing and hollering' at the other driver. At the time of the collision appellant's truck was equipped with a mirror set so appellant could see to the right of him when backing out. The appellant did not look directly north, but depended on the mirror to see north.

Appellee testified that a few days after the accident the appellant told appellee that he saw the lights of the car, but that he was so 'demned mad' he did not care whether he hit the car or not.

When we consider the foregoing evidence, and the reasonable inferences which the jury had a right to draw from such evidence it appears that defendant-appellant, while in a state of anger and with a conscious indifference to the consequences drove his motor vehicle into and against the other vehicle as a result of which appellee was injured, and under such circumstances which would tend to disclose the appellant's knowledge that an injury to appellee would be the probable result of such conduct. The jury had a right to believe the appellee's testimony that appellant admitted he had seen the lights of the other car and that he was so 'damned mad' he did not care whether he hit the car or not. Such evidence clearly established sufficient willful and wanton misconduct to warrant the jury in returning a verdict for the appellee. Hubble v. Brown, 1949, 227 Ind. 202, 84 N.E.2d 891; Kirsch v. Harker, 1950, 120 Ind.App. 66, 89 N.E.2d 924; Bedwell v. DeBolt, 1943, 221 Ind. 600, 50 N.E.2d 875.

The complaint in the instant case was predicated upon the theory that appellee was a non-paying guest in the motor vehicle operated by the appellant. The action was brought under the so-called guest statute which provides that the owner or operator of the motor vehicle shall not be liable for loss or damages arising from injuries or death to a guest while being transported without payment therefor unless such injuries or death are caused by the wanton or willful misconduct of the operator of such motor vehicle. Burns' 1940 Replacement, § 47-1021.

The amended complaint alleged that the appellee was riding as a guest in the automobile being driven by appellant when the said appellant, 'while in a sudden fit of anger, backed out of an alley between Wabash Avenue and Cherry Street and into an automobile being driven south on 4th Street in a heavily traveled part of the business district of the city of Terre Haute, Vigo County, Indiana, injuring the plaintiff as hereinafter set out.

'2. That defendant was intimately acquainted with the fact that 4th Street, at the point of the collision, is heavily traveled by motor vehicles.

'3. That the defendant at said time and place was guilty of wilful and wanton misconduct, and with conscious indifference to the consequences, recklessly disregarded the rights of Mabel Rodgers as follows, to-wit:

'(a) The defendant failed to look for oncoming automobiles before backing his automobile into 4th Street as aforesaid.

'(b) The defendant, without looking for approaching automobiles and while angry, backed said automobile onto said 4th Street at a high and dangerous rate of speed and with great force and violence, to-wit: 12 to 15 miles per hour--at a time when defendant knew that another automobile was approaching so closely that a collision would probably occur and cause injury to the plaintiff.

'(c) The defendant failed to yield the right-of-way to the automobile with which he collided, which said automobile was driving south on 4th Street in close proximity to the point of impact, which fact was known by defendant at said time.

'(d) The defendant failed to use proper care or any care whatsoever to avoid injurying the plaintiff, Mabel Rodgers.

'(e) The defendant failed to stop his automobile before backing into 4th Street.

One of the main propositions asserted by appellant's various assignments of error and in his motion for a new trial is that the specifications (a), (d) and (e) charge acts of simple negligence alone, and appellant claims that proof of such acts would not support a verdict, and that by reason of the court's instructions that proof of any of the issues charged in the complaint would...