Opinion
George P. Roberts, South Bend, for appellants-plaintiffs.
John J. Lorbert, Crumpacker, May, Searer, Oberfells&sHelling, South Bend, for appellee-defendant.
STATON, Judge.
William and Cynthia Andert, husband and wife, brought an action against Richard Fuchs alleging that Fuchs was guilty of wanton or wilful misconduct in operating a pickup truck in which William Andert was a passenger, and that, as a result of such misconduct, Andert sustained personal injuries in a vehicular accident. Trial before a jury commenced. At the conclusion of Plaintiffs-Appellants Anderts' case-in-chief, the trial court granted Defendant-Appellee Fuchs' motion for judgment on the evidence under Ind. Rules of Procedure, Trial Rule 50(A)(1). The Anderts appeal.
We reverse, holding that the evidence most favorable to the Anderts establishes a question of fact for the jury to determine whether William Andert's injuries resulted from Fuchs' wanton or wilful misconduct, within the meaning of the Indiana Guests Statute, IC 1971, 9-3-3-1, Ind.Ann.Stat. § 47-1021 (Burns Code Ed.). The facts presented to the trial court involved the events of December 20, 1974, the day of the accident. William Andert and Richard Fuchs, who both worked for the AM General Corporation, started drinking before noon on December 20, the day before a ten-day Christmas vacation began. They drank hard liquor, including rum, brandy and whiskey, until 3:30 P. M., when their shift ended. After 4:00 P. M., they met with other co-workers at a tavern, where they all drank rounds of beer and played pool until around 7:00 P. M. Fuchs testified that he had drunk five or six beers during that period of time.
9-3-3-1 (47-1021). Guest of owner or operator 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.
Darby v. Schoolcraft (1955), 125 Ind.App. 440, 125 N.E.2d 812, 814.
After leaving the tavern, Fuchs, Andert and Lanny Thompson decided to drive to an American Legion post in another town. Instead of taking separate cars, the three drove in Fuchs' pickup truck, with Fuchs driving. Lanny Thompson testified that Fuchs was not drunk and was able to drive. However, another co-worker at the tavern, Gary Able, testified that Fuchs was "pretty loaded" at the tavern.
At that time of the evening, snow was falling, with about two inches of snow on the ground. The roads were icy, slick and wet. Fuchs was traveling south on U.S. 31, driving at approximately 30 m. p. h. in a 55 m. p. h. zone. He obeyed all traffic signs and stop lights. His vehicle was not weaving in and out of the traffic lane. Andert and Thompson made no complaints about his driving and supplied no warnings.
Fuchs pulled into the passing lane in order to pass another vehicle. At some point, possibly while he was shifting from second to third gear, his truck "took off" to the left and its rear end slid on the road. Fuchs testified that his truck slid against the snow-covered median strip. He testified that he lost control and the truck slid into the northbound lanes of oncoming traffic.
Meanwhile, Bernice Carney was traveling north at about 45 m. p. h. She noticed Fuchs' pickup truck, which was turning in front of her. She jammed on her brakes but was unable to prevent the ensuing collision.
The accident occurred at approximately 7:30 p. m. James Harper, a State Police Officer, found both the pickup truck and the car situated in the northbound lanes, facing east. Officer Harper testified that Fuchs stated he had been drinking and wasn't sure how the accident had happened. Fuchs said he thought that Carney's car was trying to pass his truck. Fuchs was described as staggering and incoherent; he was unable to gather his thoughts. The officer testified that he thought Fuchs was under the influence of intoxicants.
Because of his injuries, Fuchs was charged only with failure to yield the right-of-way to oncoming traffic, an offense to which he pled guilty.
After Plaintiffs-Appellants Anderts presented their case in chief, the trial court granted Defendant-Appellee Fuchs' motion for judgment on the evidence. The Anderts filed a motion to correct errors requesting a new trial under Ind. Rules of Procedure, Trial Rule 59; their motion was denied.
The issue which we must decide is whether the evidence adduced at trial raised a question of fact which could be resolved only by the jury.
When the Guests Statute applies to a personal injury action, a plaintiff may recover only if he can prove that his injuries were proximately caused by the wanton or wilful misconduct of the owner or operator of the vehicle. IC 1971, 9-3-3-1. Plaintiffs-Appellants William and Cynthia Andert assert that the factual issue of whether Fuchs engaged in wanton or wilful misconduct was raised by a combination of factors: Fuchs' intoxicated state; the hazardous driving conditions; and Fuchs' illegal act of crossing into lanes of oncoming traffic. Defendant-Appellee Fuchs argues that his acts constituted mere errors in judgment. He claims there was not enough evidence of wanton or wilful misconduct to warrant submission of the case to the jury.
When reviewing the trial court's granting of Fuchs' motion for judgment on the evidence, this court may affirm only if we can say that the evidence, as a matter of law, would require reasonable men to conclude that Fuchs' actions did not constitute wanton or wilful misconduct. Cheek v. Hamlin (1972), 150 Ind.App. 681, 277 N.E.2d 620; Mazza v. Kelly (1970),147 Ind.App. 33, 258 N.E.2d 171. In other words, the trial court must have had before it a total lack of evidence or reasonable inferences to be drawn therefrom which would support a finding of wanton or wilful misconduct. Barbee v. McKay (1968), 143 Ind.App. 205, 238 N.E.2d 690. This court applies the rule that the trial court should have left any weighing of the evidence to the jury to determine whether an accident was caused by wanton or wilful misconduct. Cheek v. Hamlin, supra, 277 N.E.2d 620; Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1.
Our Indiana courts have exhaustively discussed the meaning of "wanton or wilful misconduct" in various decisions. Cheek v. Hamlin, supra, 277 N.E.2d 620; Mazza v. Kelly, supra, 258 N.E.2d 171; Brueckner v. Jones (1970), 146 Ind.App. 314, 255 N.E.2d 535; Bedwell v. DeBolt (1943), 221 Ind. 600, 50 N.E.2d 875. One case supplies the following definition:
"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." Becker v. Strater (1947), 117 Ind.App. 504, 72 N.E.2d 580, 581.
In Sausaman v. Leininger (1957), 237 Ind. 508, 146 N.E.2d 414, 418, the Supreme Court added the requirement of:
"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 . . . 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."
The elements constituting wanton misconduct are met if the driver (1) is conscious of his misconduct; (2) is motivated by reckless indifference for the safety of his guests; and (3) knows his conduct subjects his guests to a probability of injury. Clouse v. Peden, supra, 186 N.E.2d 1; Brown v. Saucerman (1957), 237 Ind. 598, 145 N.E.2d 898. See also Mazza v. Kelly, supra, 258 N.E.2d 171.
Other guidelines a court should apply in its determination include the following:
"a. An error of judgment or a mistake standing alone, on the part of the host, will not amount to wanton or wilful misconduct.
b. The host must have manifested an attitude adverse to the guest, or of 'perverseness', in that the host must have shown he was indifferent to the consequences of his conduct.
c. The entire course of conduct of the host leading up to the accident must be considered.
d. The host must have had actual knowledge of danger confronting the guest." Brueckner v. Jones, supra, 255 N.E.2d at 543.
Normally, intoxication alone is not evidence of wanton or wilful misconduct within the meaning of the Guests Statute. Oliver v. Estate of Clemons (1968), 142 Ind.App. 499, 236 N.E.2d 72. However, intoxication may combine with other elements to constitute such misconduct. Thus, intoxication accompanied by excessive speed or a weaving motion has been held to raise a question of fact for the jury's determination. Oliver, supra, 236 N.E.2d 72; Hubblev. Brown (1949), 227 Ind. 202, 84 N.E.2d 891; See also Thompson v. Pickle (1963), 136 Ind.App. 139, 191 N.E.2d 53.
On the other hand, in Stillwell v. Adams (1963), 135 Ind.App. 495, 193 N.E.2d 74, Trans. denied, Ind., 194 N.E.2d 806, the court held that defendant's actions constituted mere negligence. In Stillwell, plaintiff and defendant had been drinking beer together. Before the accident, defendant had been driving normally, at a speed below the limit. On making a left turn, he observed the lights of an oncoming car which had been obstructed from view by pillars. He accelerated the speed of the car and it collided with one of the pillars.
In still another case, the court held that defendant's conduct, which included drinking alcohol, constituted nothing more than an error of judgment or mistake. Fielitz v. Allred (1977), Ind.App., 364 N.E.2d 786. However, the evidence in that case differs greatly from that presented in the case at bar. The court noted:
"Although the evidence in the case at bar is uncontradicted that appellee had consumed two or three beers shortly before the accident, the evidence is also uncontradicted that appellee's ability to drive the automobile was not impaired thereby. Officer Selking testified that during the course of his investigation of the accident he became aware of the fact that appellee had been drinking but that she did not appear to be intoxicated nor her ability impaired in any way. Appellant had likewise stated that appellee's ability to drive her automobile was not affected by her consumption of alcohol. Thus there is no substantial evidence of probative value to show that appellee's underage drinking contributed in any way to the accident." 364 N.E.2d at 789.
In Jones v. Motley (1974), 160 Ind.App. 21, 309 N.E.2d 173, the court considered a situation more analogous to that in the case at bar. In Jones, the plaintiffs and defendant spent much of the day drinking beer. Plaintiffs testified that the defendant did not appear drunk as they prepared to drive away. It was raining, dark and foggy. The defendant drove in excess of the speed limit and was warned to slow down. While attempting to pass another vehicle, his car crossed the center line and collided with an oncoming car. The officer investigating the accident testified that defendant's breath smelled of alcohol, his speech was slurred, and he was obviously drunk. The jury returned verdicts for the plaintiffs. This court affirmed the finding of wanton misconduct, noting:
Although the defendant was charged with driving under the influence, reckless driving, and being drunk, he was found not guilty of any of these charges.
"Favorable evidence before the jury indicated a combination of at least five of the elements involved in wilful and wanton misconduct. Speeding at night, poor visibility, intoxication, crossing the center line to pass another vehicle at or near an intersection, and a warning from a guest." Id. at 176.
The evidence presented in the case at bar shows that Fuchs had spent much of the day drinking hard liquor and beer. Though Fuchs' passengers felt he was not intoxicated, a police officer testified that Fuchs was under the influence of intoxicants at the time of the accident. Fuchs chose to drive to another town, to continue the "party," even though driving was hazardous, given the slick, icy weather conditions and the poor visibility. Though not speeding, Fuchs attempted to pass another vehicle and lost control, causing his truck to cross the median strip and to collide with an oncoming automobile.
The evidence was sufficient to raise at least an inference of wanton misconduct on the part of Fuchs. Therefore, the evidence raised a factual question for the jury's determination. We cannot say as a matter of law that Fuchs was not guilty of wanton or wilful misconduct which proximately caused Andert's injuries.
In his brief, Fuchs raises the argument that, even if he had been guilty of wanton or wilful misconduct, Andert had incurred the risk as a matter of law by his own knowledge and conduct. Even though the evidence strongly points to such a conclusion, we may not affirm the trial court on those grounds, since the defense was not presented before the trial court. See, E. g., Brady v. Acs (1976), 264 Ind. 285, 342 N.E.2d 837, appeal dismissed, 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 64. We note, too, that the determination of whether plaintiff incurred the risk is ordinarily a question of fact for the jury, rather than a matter of law.
The trial court erred in granting Defendant-Appellee Fuchs' motion for judgment on the evidence at the close of Plaintiffs-Appellants Anderts' evidence. We reverse and remand to the trial court for a new trial.
BUCHANAN, C. J. (by designation), concurs.
GARRARD, P. J., dissents with opinion.
GARRARD, Presiding Judge, dissenting.
I respectfully dissent from the majority decision. When the court granted judgment the plaintiffs had concluded their evidence. The question then is whether there was sufficient evidence, when considered in the light most favorable to the plaintiffs, to sustain a verdict in their favor on the issue of wanton misconduct under IC 9-3-3-1. While we may not weigh the evidence on a Trial Rule 50(A)(1) motion, we must determine whether the testimony favorable to the opponent of the motion, if credited, would be sufficient to sustain a verdict in his favor. According to accepted standards there must be evidence of probative value, I. e., carrying the quality of proof and having fitness to induce conviction, 1 on each element necessary for recovery. Thus, if the evidence favoring the opponent of the motion is such that a jury resolution in his favor could be based upon no more than speculation or conjecture as to one element, then the court should grant judgment on the evidence against him. See Orey v. Mut. Life Ins. Co. of N.Y. (1939), 215 Ind. 305, 19 N.E.2d 547; Letson v. Lowmaster (1976), Ind.App., 341 N.E.2d 785.
The critical element in plaintiffs' claim is wanton misconduct on the part of Fuchs, and the problem is whether there was evidence sufficient to sustain a finding of the high probability of injury and attitude of perverseness required under the statute. Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1; Sausaman v. Leininger (1957), 237 Ind. 508, 146 N.E.2d 414.
As summarized by the majority, the evidence favorable to Anderts' claim disclosed that Fuchs was intoxicated, and that he elected to drive although the roads were slick and it was snowing. However, beyond that the evidence was uncontradicted that he drove carefully, below the speed limit, and without incident until the moment of the collision.
It appears to me that the majority's conclusion must have proceeded upon one of two rationales. One would be that the bare act of attempting to drive on the snowy roads in an intoxicated state constituted wanton misconduct. The question for the jury then was whether to believe the evidence of intoxication. The problem I encounter with this approach is in locating the qualitative, perverse character of the driver's action. As a matter of reasonable care, or even social policy, there is little problem today in finding the intoxicated driver creates an unreasonable risk of harm to others and may be held for the consequences. However, we are dealing with the legislative enactment requiring wilful or wanton misconduct before a guest passenger may recover. Our Supreme Court has characterized the essential element which distinguishes wanton misconduct from mere negligence (however gross) as a perverse motive or Conscious indifference to the consequences. I do not find such quality of action in the per se approach. See Stillwell v. Adams (1963), 135 Ind.App. 495, 193 N.E.2d 74, Trf. den. Ind., 194 N.E.2d 806, reversing jury verdict for plaintiff.
On the other hand, the rationale may be that the state of intoxication may be so great that attempting to drive, at least with adverse road conditions, Might constitute the necessary quality of wantonness. With that rationale I have no quarrel. But then we must look to the evidence to determine if it would support that conclusion. See, e. g., Hubble v. Brown (1949), 227 Ind. 202, 84 N.E.2d 891; Oliver v. Estate of Clemons (1968), 142 Ind.App. 499, 236 N.E.2d 72.
To me, the proof of additional acts such as speeding, swerving, crossing the center line, etc. is not that they are an essential substantive part of wanton misconduct, although they may in fact be so. The essential value of such evidence is that it provides a circumstantial basis from which the trier of fact may reasonably infer the necessary qualitative nature of the misconduct to establish it as wanton.
Here such evidence is missing. Instead, the evidence is undisputed that prior to the moment Fuchs skidded into the path of the other vehicle he was driving only 30 m.p.h and with Apparent reasonable care. Thus, the issue is not whether Fuchs may, in fact, have been guilty of wanton misconduct. The issue is whether plaintiffs' evidence was sufficient, if believed, to establish the reasonable inference of wantonness so that a verdict would rest on more than surmise, conjecture or mere possibility.
Considering the evidence of Fuchs' care in driving, it appears to me that standard was not met. A verdict for Anderts would necessarily have rested merely on conjecture to establish wantonness.
I therefore dissent. The judgment should be affirmed.