Sausaman v. Leininger
Sausaman v. Leininger
Opinion of the Court
This action was instituted by appellee for recovery of damages for personal injuries sustained while riding as a guest in a 1938 Ford operated by appellant.
Motion for new trial contained five specifications. The only grounds relied upon on appeal are that the decision is not sustained by sufficient evidence and is contrary to law.
The alleged acts of wanton or wilful misconduct of appellant which proximately caused the injuries to appellee are as follows: The appellant, who lacked two months of being 18 years of age, was driving an automobile owned by his uncle, which was used by appellant for pleasure. The car was so constructed that when the key was removed a pin would be inserted by a spring in a hole in the steering column and lock the wheel when the wheel was turned. On this occasion appellant left the Akron high school with some of his friends, one of whom was the appellee, for a drive through the country. In returning to Akron appellant drove in a southerly direction on State Road 19. When he was
Appellant urges that the decision is contrary to law for lack of evidence, in that there is no evidence showing wanton or wilful misconduct in the operation of the car. Appellant contends that his action was neither wanton or wilful within the meaning of the statute for the reason that he alone knew his state of mind and that his testimony is uncontradicted that he had “tried the ignition key many times and had found the lock (mechanism) did not work,” and that when he drove the car with the key out the probability of causing injury to his guests “was the least of my thoughts.” Consequently, appellant contends, under the circumstances the operation of the car with the key removed, constituted no more than a “mistake of judgment,” for which there was no liability under the guest statute (§47-1021, Burns’ 1952 Repl.).
However, we are confronted by the fact that (1) the jury had a right to disbelieve appellant’s testimony regarding his knowledge of the operation of the car
Furthermore, appellant’s own testimony was that he
Yet, on this occasion, knowing that the car was constructed in such a manner that the steering wheel would lock when the key was removed, and also knowing of the sharp curve in the road, appellant consciously and intentionally removed the key while driving at a high rate of speed and turned the car sharply into the curve causing the wheels to lock and the collision to occur.
Can we say as a matter of law that this action did not constitute “wanton or wilful misconduct”? The rule with regard to such conduct has been generally stated as follows:
“In order to constitute willfulness or wantonness within the meaning of this rule, the acts or conduct of the operator of the motor vehicle causing the injury must be done under circumstances which show that the operator is aware, from his knowledge of existing conditions, that it is probable that injury will result from his acts or omissions, and nevertheless proceeds with reckless indifference as to the consequences, or acts without consideration for others on the highway or without care for their safety, but it is not necessary that the driver should have any ill will toward the person injured or that he intend to cause or -deliberately cause, the accident or injury in question. More precisely, it has been held that there is a distinction between the terms ‘willful’ and ‘wanton,’*514 as used in such cases, in that ‘willful’ implies intent or purpose, while ‘wanton’ expresses a reckless disregard of consequences.” 60 C. J. S., Motor Vehicles, §258, p. 631. See: The Lafayette and Indianapolis Railroad Company v. Huffman (1867), 28 Ind. 287; The Terre Haute and Indianapolis Railroad Company v. Graham (1883), 95 Ind. 286.
The rule has been stated by our courts as follows:
“Willful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or ommission 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.” Becker v. Strater (1947), 117 Ind. App. 504, 506, 72 N. E. 2d 580. See also: Bedwell v. Debolt (1943), 221 Ind. 600, 50 N. E. 2d 875.
Appellant asserts that, inherent to the rule as above stated, there must be some “perverse motive” on the part of the driver, such as malice or wilfulness, as related to the probability of injury to his guests, and that no such motive existed on the part of this appellant. We concur in the fact that to constitute “willful or wanton misconduct” there must be a “perverse motive,” in that the misconduct must be conscious and intentional and of such a nature that under the known existing conditions injury will probably result therefrom. However, as heretofore stated, this does not mean that the wrongful conduct of the driver must be motivated by malice, ill will, or intent to injure. Our statute (§47-1021, supra) uses the words “wanton or wilful” in the disjunctive. Therefore, it is sufficient to meet the condition of the statute if the misconduct is wanton.
Here the jury, which, we assume, was composed of ordinarily reasonable men, had evidence before it from which it might believe that appellant consciously and with reckless indifference to the consequences, drove his car with the key removed. He was chargeable, as are reasonable men of ordinary intelligence, with knowledge that his conduct was accompanied by a high degree of probability that injury to his guests would result therefrom. Under these circumstances this court is not at liberty to disturb the verdict of the jury. Pierce v. Clemens (1943), 113 Ind. App. 65, 46 N. E. 2d 836.
Judgment affirmed.
Emmert, C. J., and Arterburn, J., concur.
Bobbitt, J., dissenting with opinion.
Landis, J., not participating.
. “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.” §47-1021, Burns’ 1952 Eepl.
. “. . . The assertions that he had no opportunity to discuss matters with his attorney and that the attorney did not advise appellant of his constitutional rights are not expressly denied, but it does not necessarily follow that the evidence furnished no conflict as to that, or that the trier of the facts was required to
“ ‘The jury is the judge not only of the weight of the evidence, but also of the credibility of the witnesses. . . . When a material fact is supported only by the uncorroborated testimony of a single witness, there is no reason why the jury should not subject the credibility of such witness to proper tests, even though his testimony is not contradicted by that of any other witness. If, as a result of such tests, honestly and fairly applied, the jurors are unable to believe the testimony of such witness, it is not only within their power, but also it is their duty, to reject it. . . .’
“. . . . Among the factors that may be considered in determining the credit to be given to the testimony of a witness are: The interest of the witness, if any, in the outcome of the trial; his bias and prejudice, if any is shown; his opportunity for knowing and recollecting the facts about which he testified; the probability or improbability of his testimony; and his demeanor while on the witness stand. Lynch v. Bates (1894), 139 Ind. 206, 38 N. E. 806; Fox v. Barekman (1912), 178 Ind. 572, 99 N. E. 989.” McKee v. Mutual Life Ins. Co. of New York (1943), 222 Ind. 10, 13, 15, 51 N. E. 2d 474.
Dissenting Opinion
This case is before us on petition to transfer. I think the petition should be denied, and I dissent from the majority opinion for the reasons stated in the Appellate Court opinion as it appears in Sausaman v. Leininger (1956), 137 N. E. 2d 547.
Note. — Reported in 146 N. E. 2d 414.
Reference
- Cited By
- 30 cases
- Status
- Published