Barbee v. Frick Ex Rel. Frick , 139 Ind. App. 43 ( 1965 )

Carson, J.

— The appellee having heretofore filed a motion to affirm judgment, and the ruling on said motion having been withheld until this cause was finally and fully briefed and cause submitted on its merits, said motion is hereby overruled.

This appeal comes to us from the Madison Circuit Court and grows out of an action for damages filed by the appellee, William Frick Jr., by his next friend William Frick against the appellant William Frank Barbee.

The complaint alleged that the plaintiff-appellee was riding as a guest passenger in the automobile operated by the defendant-appellant at a time when it struck a bridge on Indiana Highway 132 which accident resulted in injuries to the plaintiff. The complaint charged that the injuries of the plaintiff-appellee were the proximate result of certain acts of wanton and wilful misconduct committed by the defendant. More specifically the complaint charged:

“Said defendant operated said automobile at an excessively high rate of speed, approximately 90 miles per hour, this being greater than reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.”

To the plaintiff’s complaint the defendant-appellant filed an answer under rule 1-3 of the Supreme Court of Indiana. Trial was had by jury which returned a verdict for the plaintiff-appellee in the amount of $25,000.00 on which the court entered consistent judgment. The motion for new trial was timely filed and the overruling of the motion for new trial , is assigned as the error for our consideration. In the argument portion of his brief the appellant contends that the allegations of the complaint were not proven by substantial evidence showing that the operator of the car consciously and with reckless indifference to the consequences proceeded with his method' of driving knowing that if he did so injury to his passenger would probably result. In süpport of his argument the appellant generally applies several authorities which have been decided by this Court and our Supreme Court in cases dealing with wanton or wilful misconduct.

A careful study of the allegations of the plaintiff’s complaint and the evidence adduced in support thereof clearly indicates that this case does not involve wilful misconduct but was tried on the theory of wanton misconduct. The general statements of the ■ appellant are therefore not completely applicable to the case before us since wilful misconduct contemplates intentional recklessness or indifference and no such theory is involved in this case. In so far as the authorities which he cites turn on the proposition of wilful misconduct they are not applicable ■ to • the facts in this appeal. ■'

Where the evidence is in conflict we will not weigh the evidence under an assignment that the verdict is not sustained by sufficient evidence. Stidd v. Dietz (1963), 135. Ind. App. 149, 192 N. E. 2d 651, Norman v. Norman (1961), 131 Ind. App. 67, 169 N. E. 2d 414. Under assignment, however, that the verdict is contrary to law it is our duty to examine the evidence together with all reasonable inferences which may be drawn therefrom, favorable to the appellee. We must then, after this examination, determine whether or not reasonable minded men would have arrived at the same result. Pelkey v. Strom (1963), 135 Ind. App. 163, 187 N. E. 2d 753, Gaut v. Gaut (1963), 134 Ind. App. 317, 187 N. E. 2d 580.

Without burdening the record and unnecessarily lengthening this opinion we feel it wise to set out those portions of the evidence which we feel came within the above rule of law.

Direct examination of Harold Knickerbocker:

“Q. As you were proceeding that way, would you please tell the next time you saw this car ?

A. Well, I glanced in .the mirror and the first time I glanced in the mirror, I wasn’t sure the car had started up. At that time, I suppose I was 600 or a thousand feet ahead of the car and the next time I glanced in the mirror, the car had started and seemed to be overtaking me quite fast.

Q. Did you continue to watch this car as it came up behind you in your rear view mirror?

A. Yes, I did.

Q. Would you please describe the way the car was driving at that time when you observed it ?

A. Well, it was coming up quite fast. That’s the reason it caught my attention and when the car was within range of two or three feet behind me, it pulled out on the opposite side of the road and was coming at a very fast rate of speed. I had mentioned it before the car got to me — that it was coming awful fast.

Q. Did this car then pass your automobile?

A. Yes, it did.

Q. At the time this car passed your car, how fast would you say that you were driving your car?

A. I was driving at approximately fifty miles an hour.

Q. After this car passed your car, then what did it do ?

A. It proceeded on down the highway.

Q. Could you describe the manner in which it proceeded down the highway?

A. It was a normal passing with the exception of the high rate of speed, which caused me some concern.

Q. After the car had passed your car, did it continue then in front of you at a reasonable distance or what did it do?

A. Oh, well, it pulled away very rapidly.

Q. Could you give an estimate of the speed that this car was driving when it passed you and then went on out in front of you?

A. Well, I said at the time, that I would estimate it was driving somewhere around 75 or 80 miles an hour.

Q. Did the car, after it passed you, — what did it continue to do, if anything?

A. Well, it seemed that it continued to accelerate but it pulled away so fast that I couldn’t tell. I know it didn’t slow down any.”

Direct examination of Marguerite Knickerbocker:

“Q. Will you tell when you next saw the car?

A. Well, we had passed it just slightly before and it came around us very fast and then pulled right on off down the road.”

“Did the car stay in front of you?

A. No, it pulled away very fast and it went right down the road. We didn’t see it very long after that.

Q. Do you know about how fast you were going?

A. I would judge around fifty miles. That’s what my husband generally drives.

Q. Did this car stay in your view — the car that passed you?

A. Not very long.”

Direct conditional examination of William Frank Barbee:

“Q. With regard to these events that I have been asking you about on Wednesday, July 19 and Tuesday, July 18, of 1961, is it that you don’t have any specific recollection concerning events or is it that you have lost your memory because of something that has happened to you?

A. I think it is more or less — I don’t think it is anything from the accident that caused me not to remember, I just don’t recollect what I done.

Q. In other words you don’t believe that your lack of recollection is due to anything that happened in the wreck or anything else that happened to you but it is rather you just specifically don’t remember your activities on this particular day, is that right?

A. I think that is it.”

Direct examination of William E. Frick, Jr.:

“Q. All during this time, who was driving?

A- Mr. Barbee.

Q. What is the. next thing that you recall ?

A. . I don’t recall too much after that. I remember that everything was going by awful fast — the telephone poles.

Q. What is the next thing that you remember ?

A. I remember going over the dog leg in 132 and then the car — it felt like the car was raising up off the road and it felt like it slid off the right side of the road.

“Q. Billie, what did you say the next thing was that you felt?

A. That the car had turned half way around.

Q. Do you remember anything after that?

A. I was scared.

Q. What is the next thing you remember ?

A. Waking up in the hospital.”

“Q. Do you recall anything in particular with reference to the operation of the car — speed of the car as you were going into the dog leg?

A. I know it was awful fast.”

In the case of Brown v. Saucerman (1957), 237 Ind. 598, 145 N. E. 898, our Supreme Court had before it a case involving excessive speed, a dark night, slick pavement, tires with insufficient tread, and driving on the wrong side of the center line of the highway. With all of these factors before it the Supreme Court said at page 609:

“To have been guilty of wanton or wilful misconduct appellant must have intentionally proceeded into the curve with reckless indifference to the consequences, knowing that a condition existed from which, because of his conduct, an injury to his guests would probably result.”

The Court further said on page 610:

“. . . it is fundamental that the plaintiff in a civil action must prove the allegations of his complaint by a preponderance of the evidence.”

The language of Brown v. Saucerman, supra, was affirmed by our Supreme Court in the case of Clouse, etc. v. Peden (1962), 243 Ind. 390, 186 N. E. 2d 1.

In the case of Buroker v. Brown (1960), 241 Ind. 421, 426, 172 N. E. 2d 849, the following statement is found:

“Furthermore, we note that appellant here erroneously assumes that the alleged prevailing' opinion in the Saucerman case rests upon the assumption that at the time of the collision the appellant in'that case was driving at a speed of from 70 to 80 miles per hour and that the excessive speed was the proximate cause of the collision. However, the evidence regarding speed as recited in the Saucerman case is limited to that of an officer who examined the car the next day and merely estimated the speed of the car from the damage done to be ‘better than 65 miles per hour.’ In fact, the alleged prevailing opinion upon which appellant relies specifically states that the testimony regarding a speed of 75 or 80 miles per hour was of no probative value.

In the Saucerman case the testimony regarded as of “no probative value” and discussed in the Buroker case is that given by a witness who was two miles away from the scene of the accident. As is stated in Brown v. Saucerman, supra, “This, in our opinion, is not substantial evidence and under the circumstances as shown by the record it can have no probative value.” The Buroker ease affirmed the lower court decision awarding the plaintiff damages but the evidence in that case was much stronger than that here presented. Although the award in that case was based primarily on excessive speed there was direct testimony that the appellee had observed the speedometer for several miles and that the appellant had driven at a sustained speed of 85 to 90 miles per hour until the accident occurred. We have no such substantial evidence before us in this case.

When we examine the evidence in the case before us we find that the Knickerbockers estimated the speed of the host car at the time it passed them as, “somewhere, around 75 or 80 miles per hour.” When passed by the auto-nlobile. they were four or five miles from, the scene of the accident. There is no other direct evidence as to speed. From this evidence then the jury was expected to infer that the appellant’s speed continued or increased up to the time of the accident and to further infer that the appellant consciously persisted in a course of conduct which he knew might result in injury to his guests. We think that under the rule set out by this Court in the case of Burke v. Burke (1963), 135 Ind. App. 235, 191 N. E. 2d 530, there was a lack of substantial evidence to sustain the verdict of the jury; that the verdict could only be sustained by predicating inferences upon inference. This we will not do.

When we apply the tests contained in the above cases we conclude that the verdict of the jury was contrary to law and this cause is therefore reversed with instructions to grant appellant’s motion for new trial.

Judgment reversed with instructions.

Martin, J., concurs. Faulconer, C. J., concurs in result. Prime, J., dissents with opinion.