*1 584 appellants
lants. It is the breach of that contract occasioned this action.
Lastly, ordering appellants allege the court erred in judgment entry 17, 1967, approved court on October spread September 22, They complain of record as of appellants’ rights period prejudiced in that the were filing thirty their motion for reduced from new was days days. to five
In view of the fact that the motion for new trial and the support occupies pages memorandum in thereof alleged transcript, appears errors, to raise all available by statute, fact filed within the time allowed cannot we say appellants prejudiced by were court’s If action. court, error was ap- committed it was harmless to the pellants, and therefore not cause for reversal. considering record, the entire we believe the case was
fully fairly rights tried appellants and that prejudicially by any have not been pro- affected error in the ceedings. judgment should, of the triаl therefore, court be affirmed.
Judgment affirmed.
Reported in
Thomas Collins v. Lawrence Grabler 22, 1970. Rehearing 23, 1970. Filed denied 469A60. October November [No. May 27, 1971.] Transfer denied *2 Wiebe, Wiebe, Richard Ver C. Ver & of Fort Lebamoff Wayne, appellant. for Haynie Yoder, Keller, Livingston, Dildine,
David B. & Wayne, appellee. Fort for brought by plaintiff- C.J. This is an action
Lowdermilk, injuries personal against defendant-appellee for appellant operated between an automobile growing a collision out guest passenger appellant was a and by in which appellee vehicle. another motor charged, by complaint, his second amended which
Appellant trial, mis- of the acts of wanton at close amended was part proximately appel- appellee’s which caused on conduct injuries. lant’s complaint appellee amended filed appellant’s second
To being Supreme paragraphs, first under in two answer paragraph being 1-3, affir- and the second Rule Court alleging appellant risk of incurred the the accident mative during record discloses that the trial injuries. for directed verdict at the a motion conclusion filed appellee by evidence, court, which was overruled of all asked leave to amend appellant his second after by deleting allegation therefrom the complaint amended part appellee. request on the This misconduct “willful” granted by allegation was the court and the of willful mis- stricken, question conduct was and is not now a before this court. by jury,
The trial $10,000 was had and a verdict for appellant judgment duly returned for the entered in that amount. timely
Appellee filed his motion for new trial on the follow- ing grounds: (1) jury verdict of the is not sustained sufficient evidence. day appellee’s
The next granted, motion for new trial was reading the court’s decree as follows: considered, adjudged, “It is therefore decreed and ordered appear justice it does not that substantial has been jury the verdict done heretofore rendеred in this cause; finding that the verdict plain- awarding damages upon finding was not tiff sustained preponderance evidence and was the clear sufficient the evidence adduced in the trial preponderance cause; that the the evidence adduced *3 cause the trial was in the and of favor of defendant against plaintiff; the that defendant’s motion for a new trial hereby and the same sustained and a new trial (Our emphasis.) in this cause.” ordered Subsequently, appellant filed his motion to make the order sustaining appellee’s specific, motion for new trial more by the motion was denied court.
This court has heretofore ordered and directed the give writing Circuit Court to of the DeKalb reasons in for sustaining appellee’s trial, motion for a new and the order with, complied assigned and the has been additional reasons as are follows: response Appellate “In to the order of the Court of Judge that ‘the of the Indiana out the of the DeKalb Circuit Court set specific reasons on which he determined the verdict finding awarding for the Plaintiff and dam- finding
ages upon such was not sustained sufficient evi- preponderance the clear and dence cause,’ Judge the trial of adduced the the evidence of respectfully clear states the the DeKalb Circuit Court preponderance evidence, the indeed the of uncontroverted evidence, cause shows: adduced said the Defendant, Collins, Plaintiff, the “1. That the and got the Grabler, together night question for on the night having planned on the expressed purpose go try and to town and from to bar to drink bar pick up some dates. evening about from “2. That in the course of said De- A.M., and the both Plaintiff 10:30 P.M. to 2:30 the alcoholic drinks of each ten more fendant consumed beverages, tiff drinking Plain- while the the which occurred presence of other each the were Defendant having knowledge type of the number each beverage consumed other. of alcoholiс the drinks intoxicated, sick That Plaintiff became “3. the during sleepy ning; the eve- consumed due to drinks he had the con- had the Defendant that the Plaintiff knew that Plaintiff; many as had the sumed as or more drinks both intoxicated. the Plaintiff and the Defendant were on accompanied Defendant That Plaintiff the “4. evening’s De- with the vehicle venture in Defendant’s places the in- where fendant toxicating the driver thereof to consumed; beverages Plaintiff were voluntarily Defendant vehicle with the entered Defendant’s at the to his home as the driver thereof conclusion to be returned drinking parties. activities leaving Plaintiff That bar where the “5. after the last drinking, the bars were and Defendant had been until closed, their Defendant made and as the Plaintiff and home, stop way had Defendant uncertain the Plaintiff vomit; Plaintiff had to that after the vehicle because the such voluntarily vomiting, act of the Plaintiff re-entered Defendant for the ride home and the vehicle driven shortly thereafter. the accident ocсurred injuries followed and That accident which “6. resulting therefrom were the result of the to the Plaintiff nothing Defendant, who recalled intoxication of the leaving lights except trip the last bar after *4 actually than disclosed to have trucks evidence more thought lights present, the Defendant he saw been just prior coming accident; highway traffic him in his lane of to toward the across the car the Defendant swerved his thought trucks which he to avoid these he saw coming lane of traffic and the in his collision occurred with coming vehicular traffic toward the Defendant opposite of any application apparent lane of traffic without prior the brakes on to collision. vehicle Defendant’s guest “7. That the in the vehicle driven Plaintiff was a evening’s during the Defendant entire course of their travels and chose remain adventure and the Plaintiff to trip the Defendant’s on the in Defendant’s vehicle vehicle, and home further to re-enter such after chose same stopped permit vomit, had been Plaintiff trip to continue the home. “8. accident, That at the time of the the Defendant was so much under the influence of intoxicants that he was safely unfit operate his vehicle and the Plaintiff knew or in the exercise of care reasonable should have known of and condition; deliberately Defendant’s intoxicated voluntarily entering being the vehicle which was driven deliberately voluntarily Defendant and in and re- entering such stopped vehicle after the same had been and the Plaintiff had a choice whether or not to continue trip Defendant, deliberately the and home with the the Plaintiff voluntarily venture; assumed the risks incident to such voluntary that such assumption deliberate and of the risk preclude recovery should Plaintiff. That, jury, having “9. found for the Plaintiff and damages Plaintiff, improperly ignored awarded failed to apply assumption the doctrine of of risk as above stated forth, factual situation above set accordingly Defendant entitlеd to a new trial.” Appellant’s assignment (1) of errors is that: The court sustaining appellee’s erred in motion a new trial. litigation parties good to this were ap- friends. The pellee military returned home from parties service celebrating appellee’s were return home. The events that took place before the collision occurred commenced at a restaurant appellant employed. where The restaurant was located Wayne, four miles east of city about Fort between that Haven, Highways New and about one-half mile north of The time was about 9:30 P.M. They Wayne, went to Fort appellee driving with the stop automobile. first restaurant, own was at a drive-in *5 appellee appellant and coke. After one-half where had coffee they Village, hour there went the Bavarian tavern Wayne. appellee there drank downtown scotch Fort While beer, having They appellant re- and with each two drinks. approximately 45 mained there minutes to an hour. Shoe, Lucky appellee
They to the with went from there nothing ordinary noticed out of driving appellant and driving. Lucky Shoe, period At appellee’s in a about hour, drinks, of them had three one-half each approximately drinking drinking appellee scotch. appellant beer and with they Lucky midnight Shortly and went left the Shoe after Dog Stand, Coney appellee Hot with Island to the downtown noticing nothing wrong such driv- driving appellant with and Dog appellant Coney had two hot ing. Island Hot Stand At the They twenty dogs appellee one. were there fifteen to and Citadel, tavern, doors east to the two and walked minutes arriving approximately appellant 12:30 A.M. At the Citadel at parties appellee one scotch. The remained beer had one twenty then fifteen to minutes and walked back at Citadel They Coney appellee’s to the returned auto- Island. Village, appellee to the Bavarian drove back with mobile and noticing nothing driving appellant ordinary out of the still driving appellee’s at this time. about nothing that at this time
Appellant testified he noticed physical appellee’s appellee condition and that about at all right slurring talking all and was not his words anything sort. of that parties a little later 1:00 o’clock A.M. or arrived
At Village and more at Bavarian ordered drinks. At back evening began appellant drinking gin, point lemon 7-Up appellee remained his scotch. Each had approximately three drinks. call appellee A.M. came the final for drinks and 2:00
At Appellant nothing had scotch. further another ordered at drink time as he was sick at stomach and tired sleepy. Appellant Village left the Bavarian and went out appellee’s passenger’s and sat in car on the side of front seat. go home,
Appellee stay did not want but wanted to the tavern and finish his drinks and talk with a soldier acquaintance he had made.
Appellant appellee’s sat aslеep. car next and fell He appellee opening car, remembered the the door *6 He awakened him. believes it was about 2:30 A.M. parties had no conversation with one another at this time. nothing Appellant appellee’s noticed about condition at this thing appellant heading next time. The remembers toward stopping New Haven and at Anthony the intersection of Wayne, approximately Maumee in Fort two miles from the Village, appellant up, Bavarian where very threw as he was During sick at his stomach. appellant two mile drive nothing asleep was and noticed appellee about how the was driving, appellee but remember does that something said being appellant pantywaist, being about not to able hold his drinks, sissy. him a and called get
Appellant did not ask to out of the car when the driver permit vomit, stopped him to appellee’s not to did observe to whether or not he condition as was intoxicated and did not driving. aрpellee’s fact, record observe discloses nothing expected that would appellant ordinarily did be of an prudent man under reasonable and such circumstances for his immediately safety. Appellant he claims sleep own went trip gravel resumed and next he heard as the was the injured flying he had been and dirt the collision. parties court have used the words “assumed” interchangeably, risk words “incurred” risk and the which is opinion are of the We understandable. since there was relationship parties between the no shown contractual in this getting riding appellant’s into appellee’s cause
591 place question presents question at car the time and question of “incurred” risk and not a of “assumed” risk. question are as We confronted with the to whether sustaining trial discretion the motion for abused juror. statutory jurisdic- a new trial as the thirteenth Our question (b), tion of this is Burns’ 2-3201 Ind. Stat. § follows: granting ruling a motion for new court “A order of the or judgment, appeal be a final an deemed to
triаl shall be may taken therefrom.” App. 657, Bailey 192 Kain case of Ind. In the Judge (Transfer denied), from which Smith E. N. 2d (1968), 143 Bardach quoted case of White v. 2d the court said: 241 N. E. duty of this becomes the sole court “It therefore (1) court its record see if the trial abused examine the to (2) injustice discretion, flagrant
judicial the trial court’s has been done very strong (3) from the appellant, relief case ordering a has been made new trial [Citing appellant. cases.] trial, of a motion for a new consideration “On obligation weigh conflicting imperative judge has an *7 [Citing cases.] evidence. clearly appear it a for a new trial must motion “On and, justice has judge substantial been done
the trial preponderance opinion his evidence if in is trial. duty grant verdict, it his new [Citing cases.] granting a trial court hesitant overrule will “We strong that there trial for the reason are new a motion for action, of the trial presumptions favor court’s precedent a sound which dictates is therefore and it guess be reluctant court should to second granting [Citing a motion for new trial. court a trial cases.]” 600; Bayless Topper (1893), 134 Ind. v. v. Barner
See, also: 382; N. 2d 177 E. Wildwood Ind. (1961), 132 Dunn 592 Gary
Manor
Bank
App. 296,
v.
National
N. E. 2d
The trial out set his reasons for his sus- taining trial, a motion for new which reasons have been opinion. required heretofore set forth in this This court supplemental judge they from reasons the trial were submitted and have set forth complete been After herein. a together evidence, study review awith careful judge’s ordering trial, reasons for a new we are of the opinion that: judicial court The trial did not abuse its discretion in
granting trial; the new injustice appellant;
2. No has been done to the strong 3. There has not been case for the relief from ordering the trial court’s new trial appellant. made given by If either one the reasons the court for its action granting a motion for new trial is sufficient reason there for, it is not incumbent this court to discuss the other Bardach, supra. White reasons. go behind the will not motion for
We new trial and the granting written reasons stated the trial trial; only alleged motion for a new error was that granted a motion for trial court new trial and this we have fully considered. hereby does
The court now remand this cause to the trial trial. court for new
Judgment affirmed.
* concurs; Cooper, J., Carson, J., opinion; concurs with Sullivan, J., opinion. dissents with * Judge participated Judges, While a conference of the Cooper untimely opinion, filing in this concurred death occurred before the opinion. of -this
CONCURRING OPINION writing Carson, J. I concur in the result reached the Judge appeal in this a but for different reason. jury record for indicates that returned verdict the plaintiff-appellant;
the filed a motion that the defendant trial; for a new the motion for sustained the specified new trial and his reasons after order of this court sustaining writing for filed in said motion. The reasons among contain, things, the the record in other this cause following language: Appellate response “In order Court Judge set the Circuit Court Indiana that out the ‘the DeKalb specific verdict determined the reasons on which he awarding finding dam- and the for the Plaintiff finding ages upon sufficient such was not sustained preponderance the the and was clear evidence cause’, Judge of the trial of the evidence adduced in the respectfully the clear states that DeKalb Circuit Court
the evidence, preponderance the uncontroverted indeed evidence, shows: adduced in the trial of said cause Defendant, Plaintiff, Collins, the That “1. the got together night question the Grabler, on the having night purpose the planned expressed on go try drink and and to from bar to town bar pick up some dates. j|t Jft intoxicated, sick and Plaintiff “3. That the became during eve- sleepy ning; he consumed due the drinks had had Plaintiff knew that the Defendant Plaintiff; many had as or more drinks as consumed and the Defendant were intoxicated. the Plaintiff both [*] # [*] leaving the last bar where Plaintiff That after “5. drinking, until been were Defendant had bars closed, un- Plaintiff and Defendant made their way home, stop Plaintiff had the Defendant certain vomit; Plaintiff had to that after because the vehicle voluntarily vomiting, the Plaintiff re-entered act of Defendant for the driven ride home and vehicle shortly thereafter. occurred accident *9 guest “7. That Plaintiff the was a in the vehicle driven during evening’s the Defendant the entire course of their travels and adventure and remain the Plaintiff chose to the Defendant’s in trip on Defendant’s vehicle the vehicle, home and further chose to re-enter such after the stopped same permit vomit, had been to the Plaintiff to trip to continue the home.” n foregoing language judge convinces me that the trial weighed the evidence and arrived at a result different from n jury weighed that the which had also the evidence. assigns plaintiff-appellant the trial court erred sustaining in appellee’s the motion for a trial and new devotes argument theory granted entire to the court the the grounds motion for a new trial the on “the verdict of jury Applying the is not sustained sufficient evidence.” theоry plaintiff-appellant, position in we are jury. of a referee between the trial court and the I do not proper believe that such is the function of this court considering sustaining the action of the trial court a mo- it, tion for a new trial. As I view the function of this court is to determine from the record the basis on which the trial This must court sustained the motion. be determined from assigned by language trial court. The the reasons case, judge out, my opinion in this as set hereinabove leads the conclusion court effect found the contrary verdict of to law. This was one of assignments in motion for new trial. plaintiff-appellant presented I do not think that has argument approaching interpretation an such an court with judge’s of the trial reasons.
However, giving scope plaintiff- credit full argument, appellant’s I do not he believe that has sustained convincing appeal of this court the burden on that the action sustaining judge in of the trial the motion for a new trial Bailey in violatiоn of the tests laid down Kain
595 (1964), App. 657, 662-663, 135 Ind. at 192 2d N. E. at (Transfer denied), and followed in White v. Bardach App. 586, 869-870, 2d at N. E. follows: duty “It therefore becomes the sole of this court to ex- (1) amine the record to see if the trial court its abused judicial (2) flagrant discretion, injustice has been done appellant, (3) very strong case for relief from ordering the trial court’s a new trial has been made appellant. [Citing authorities.] trial, “On consideration of for a a motion new the trial imperative obligation weigh conflicting has an [Citing evidence. authorities.] *10 a clearly “On motion a appear for new it trial must to justice and,
the trial if that substantial has been done opinion preponderance his is evidence verdict, duty grant it is his to the new trial. [Citing authorities.] granting “We will be hesitant to overrule trial court in strong a motion for new trial for the reason that there are presumptions action, favor trial court’s and it is precedent therefore a sound which dictates that this court guess grant- should to be reluctant second a trial court in ing [Citing a motion for new trial. authorities.]” failure, therefore, plaintiff-appellant to demonstrate my satisfaction that the trial court violated those duties enjoined upon by it Supreme the decisions of the Court of by Indiana and this court necessitates an affirmance of the decision trial court.
The decision should be affirmed.
DISSENTING OPINION respectfully dissent from the result and Sullivan, J. I reasoning opinion by Judge from the stated in the Lowder- I that it was error milk. believe the trial for court to sustain defendant’s motion for new trial. DEFENSE, RISK, OF AN AFFIRMATIVE
ASSUMPTION DEFENDANT’S IS NOT PROPERLY ARGUABLE UNDER SUFFICIENCY OF EVIDENCE SPECIFICATION by opinion apparent It written is from examination of the Judge as the Lowdermilk I shall hereafter refer which primary opinion,1 record, herein that the briefs filed Judges court, my colleagues, parties, trial learned erroneously consistently confine Cooper, but Lowdermilk and appeal defendant-appellee’s consideration of alleges specification trial motion for new by j ury suffi- plaintiff sustained verdict of the was not cient evidence. majority’s embrаced within sole substantive issue “assumption” “in- is the defense
discussions that of statements set forth in the court’s curred” risk as upon which is affirmative defense issue an reasons. Such v. Yenny Ridgway proof. had the burden defendant below plain- (1944), 581. In a verdict for 57 N. E. 2d below, any, tiff, error, presented defendant’s if pre- is plaintiff not assumed the risk that said contention is sustained the verdict not specification served evidence, the defendant the verdict for as to sufficient negative. The is respect defense to that affirmative concerning “assumption” any, risk therefore, error, if contrary solely by specification verdict reached Souerdike E. 108 N. State law. *11 2d 136. fact, did, a in contain for new trial motion
Defendant’s contrary to law. The trial specification that the verdict was however, of the motion did not court, consideration in its “assumption” that frame- of risk within the defense view required it, in the context of a verdict con- work; did nor plaintiff as a matter law “assumed” law, that trary find Judge Lowdermilk, by opinion forth the views set 1. Since majority concurrеd, Judge Cooper the views a do not reflect in which inappropriate, believe, to Division it be I members of the would majority opinion. to such as a refer mistakenly the risk. The trial court considered the matter upon premise reached its determination the that the preponderated finding evidence in favor plaintiff of a the risk.2 "assumed” appellate
The review of the trial court’s action as set primary opinion forth in the likewise treats the matter as dealing sufficiency one awith of the evidence. The established jurisdiction, however, law of this does not restrict court this upon solely by review to consideration the reasons stated granting trial in the court the defendant’s motion for new Pennsylvania trial. Rans v. R.R. Co.
App. 592,
majority,
new Bаiley 866, 586, v. 241 N. E. 2d (1968), 143 Ind. re App. 657, 486, 192 2d in this N. E. (1963), Kain agree support gard. cases lend above-cited I the judge proposition that a trial is a application of the abstract weigh conflicting juror evidence in de and must thirteenth deny termining grant or a motion for new trial. whether might sure, extreme cases a trial court effect To be some substituting arbitrarily view justice for that of the truly perhaps jury. Further, felt that no one is it is harmed fact, jury by if, the trial correct the a second jury instance, that a the are second will chances find first similarly. legal logic propriety prin disagree the
I opportunity to set forth the however, take this ciple, practice disagreement. In all areas of my other trial basis constantly harp against invasion decisions procedure our jury jury’s province. It is well-established that the of the weigh and it is for the alone to of fact sole trier is the credibility witnesses. determine evidence and Corporation School Penn-Harris-Madison Relick See Trustees Indiana 2d 845 and 258 N. (1970), 254 E. Ind. 252 251 University N. E. 2d 439. v. Williams knowledge been, my has never nor should principle to This judge the trial dis be, a condition —“unless qualified it judge, learned, no agrees”. my trial matter how view wise, is not and should not be a thirteenth experienced and verdict, judge, before or after should whether juror. trial only finding if, process if, in his fact interfere with reach, minds must as a opinion, matter reasonable considered law, particular verdict. given persuasive support regard in this My view Supreme the Indiana Court in taken action recent most (E) Indiana new Rules Civil Rule Trial this area. granted when a new trial requires Procedure findings ruling support special make must ruling if and that is to the effect that the verdict was weight evidence, finding must relate *13 supporting opposing evidence to each issue granted. which a new trial was perspicacious immediately one
At least observer noted part that such rule indicates a conscious on the desire of our safeguard finding Supreme process Court the fact Greenebaum, from well-intentioned insulate it trial courts. Trial Motions Under Rules, Post the New Indiana requirement at That L.J. 377 381-382. this more restrictive concerning granting of new trials was on the deliberate part Supreme by Court is further indicated the fact Assembly provision General deleted the from the Study proposed 191, 1, Commission’s draft [Acts ch. § 59(E)], provision by Rule but that said was reinstated promulgation Supreme my Court of the rules. It is belief, therefore, or principle the rule enunciated in the concurring opinions primary herein and court Bailey Kain, supra, Bardach case and is alien to the truth-seeking jury traditional and well-founded process; is disapproved by persuasively 59(E) ; Trial Rule and accord- ingly be here and appropriate should now accorded the last rites. IN
DEFENSES AVAILABLE AUTOMOBILE GUEST CASES AS OF RISK, INCLUSIVE INCURRED ASSUMED
RISK, CONTRIBUTORY WILFUL OR WANTON MISCONDUCT, AND CONTRIBUTORY NEGLIGENCE my legal It view that assumption doctrines of risk, risk, contributory incurred or misconduct, wilful wanton together contributory negligence with arguably con- guest a defense to a stitutes claim an passenger, automobile keystone are the of the cause before us. The law this area settled, primary from is far but the concurring opinions nothing do to alleviate this unsettled state of affairs. conclude, at reading least leads cases one
A may arguably following inference, defenses guest case: in an automobile to a defendant available misconduct; Contributory or wanton 1. wilful not restricted to “Assumption” of risk whether or 2. relationship exists in which a contractual situations defendant; plaintiff and between risk, synonymously used “as- “Incurred” whether 3. descriptive relationships as risk or between sumed” contractual; plaintiff and defendant which are not availability Contributory negligence although the contrary widely ain case is defense such and simple contributory negli- stated view that often recovery against gence wanton not bar does wilful automobile host —defendant. by this primary have been decided which should issue law, guest-passenger as- whether, a matter of
court *14 guilty injury; is the or whether he sumes or incurs risk of to of himself contributes or misconduct which wilful wanton injury. his own appropriate delineate distinction
At it the the outset is and “in- in “assumed” the classic or technical sense between curred” risk. assumption of risk are risk and incurred doctrines range “jack a
together all defenses” roams so far a in defy the courts never seem to tire their capture, but as to assumption concept of risk was corral it. efforts only applicable, deemed with reference developed, and against his On other a master. the action of servant risk in of “incurred” Indiana was first the doctrine hand length Indiana Natural Gas and in the case of at discussed 266, 918, 65 E. Company O’Brien N. v. Oil explaining defining court and There the E. 742. 66 N. stated: the doctrine “ ** * ‘taking risk’ or the doctrine of ‘incurred risk’ upon, may be, ‘running or in its risk’ be said rest or equivalent, least, effect, import, at nature, and injuria, volenti non the maxim expressed
principle fit
601
theory
agreement
is
applied
and
not founded on the
of an
usually
or contract as is
in suits
a
asserted
servant
asserted,
principle,
master. This
or
doctrine
application,
is of universal
not confined alone to
parties
cases where
the relation
is of a contractual
Therefore,
relations,
independently
nature.
of such
there
may
in a
like
case
the one at bar an element to the
injured party by
premises
effect that
is
incident
his acts
shown to have incurred or taken
himself the risk
appreciated danger, and,
to a known and
if the
case,
facts
disclose such
feature or element
in the
it
recognized
accordingly,
should be
and treated
and not
merely
v
constituting contributory negligence.
as one
Warren
Boston, etc.,
484,
.
Co.,
895;
R.
163
40
Mass
N. E.
O’Maley
Gas Light
135,
Co.,
v. South Boston
158 Mass.
161;
N.
Quartermaine,
E.
47 L.R.A.
Thomas L.R.
Q.B.D. 685;
Co.,
Miner v. Connecticut River R.
153 Mass.
994;
Negligence
26 N. E.
Thompson,
(2d ed.),
§
however,
“In order,
principle
to which we have
may operate
referred
applicable
or be
to cases of the class
injured
one
review,
appear
under
it must
person
knowledge
danger
had
question,
appreciated it,
voluntarily,
choice,
or of his own
ex-
posed
curring,
danger,
thereby
himself to or
such
in-
encountered
taking
or
upon himself, the risk incident
thereto.
See authorities
person
knowledge
above cited. Where a
has
fully
appreciates
danger,
under
such circum-
stances,
exposes
any special exigency compelling him,
without
he
danger
himself
peril,
to such
his act
premises
voluntary.
may be deemed to have been
Contribu-
tory negligence in
properly
case can not
be said
therein,
certainly
to be an element
voluntary
act
party
exposing
of a
apprec-
himself to a known and
danger
wholly incompatible
iated
negli-
an act
gence or carelessness, for it must be manifest
that careless-
regard
ness in
ato matter
is not the same as the exercise
of a
respect
deliberate
*15
choice
thereto. Freedom of the
fact,
will,
thing
in
is
emphasized by
the
principle
the
as-
serted in
injuria.
the maxim volenti non
certainly
It
fit
that,
must be truе
design
in an act
shown,
where
the
imprudence
negligence
wholly
the actor is
immaterial
* * *
as a feature therein.
contributory negligence
incurring
“It is evident
and
danger
appreciated
risk of
known and
the
are
in-
two
separate
dependent and
defenses which should not be
”
* * *
(160
with each
confused
other.
272-274)
Ind. 266 at
authority
leading
on the doc-
O’Brien
remains the
The
case
recently by
Indiana, being
in
cited
of incurred risk
trine
App.
(1969), 144
DeMoss
court in Coleman v.
Unfortunately, rather clear what were the over and confused doctrines in 1903 have clouded become “assumption” of risk was years. Thus, doctrine of the while employer-employee early primarily cases when used involved, of automobile relationship with the advent must requirement host-driver that the statutes and negligence ordinary something guilty more than guest-passenger, injuries order to be liable for subject significance and has been taken on new doctrine has great misinterpretation arises misinterpretation. This negligеnce traditionally, contributory because has been my is, in such cases. still as a defense view unavailable confusion in caused untold has arisen and problem that “guest courts to the failure many cases” is the doctrines distinguish separate consistently natures negligence, assumption and incurred contributory of risk allowed to have been the three doctrines Too often risk. confounded. overlap, thus have become DeMoss, that: supra, stated we In Coleman v. distinguish- explicitly clear are not Indiana cases “The ‘assumption of risk’ ing ‘incurred comparing the doctrines However, appears to either it that for one risk’. required risk, be some it there or ‘incur’ ‘assume’ understanding involved and that knowledge of the risk risk, does so volun- or ‘assumes’ ‘incurs’ the one who distinguished on basis that tarily. doctrines are only while ‘incurred context a con- con- arises ‘assumption of risk’ requires relationship, risk’ no tractual tractual * *” undertaking. 118, 128, Stallings Dick inAnd 82, we noted: N. E. 2d differentiated between doctrine of hаve “The courts only risk of incurred and the doctrine risk
assumed
603 holding extent of applies that of assumed the doctrine risk only in those instances where there is a rela- contractual ” * * * tionship parties. between the (It Stallings should be that cases, noted the Coleman and supra, guest do not with deal automobile situations nor with misconduct.) wilful or wanton
Notwithstanding in accurate technical statements the Cole- Stallings concerning man and cases the law as it exists to reference the distinction between assumed risk in- risk, is, believe, I appropriate curred it for us to reassess guest dealing that distinction. cases when plain- with the incurring assumption tiff’s risk, of a I would not alter requirement voluntary that knowing. such be I see reason, however, no to continue distinction between merely assumed and incurred risk on the basis that a risk may only be “assumed” where there is a contractual rela- tionship. As Dean Prosser has said: “ * ** Although early decisions, it said in and is courts, repeated by assumption still some of risk will apart fоund from a not be parties, contract relation between generally recognized it is now basis consent, is not contract but
the defense and that it is ”* ** agreement many cases where no available exists. (3rd 67, 1964), p. on Torts Prosser Ed. 459. § distinction, guest however, To appears abolish cases Scylla place Charybdis, us between as can be noted reading opinion a of this court’s recent in Rouch from v. App. 142, Bisig (1970), 883, 258 N. E. 2d wherein Judge Sharp species notes that “incurred risk” is a of con- negligence.3 appropriately tributory He cites Cleveland RR. thought, contrary however, exemplified by 3. The school language following persuasive Manufacturing from Williams v. Brown 312, 305, which, though (Ill. 1970), E. 2d 261 N. not an Co. automobile places proper nevertheless the “assumed risk” defense case perspective. “* * * Furthermore, applied determining while the test using product user assumed the risk of a whether a dangerously has known to be fundamentally subjective test, defective a in the sense knowledge understanding appreciation danger it is 604 577, Emhardt v. Lynn (1911), Ind. 95 N. E. 2d 46 N. E.
Perry Stadium, Inc. necessarily ex- opinion Rouch interpret I would relationship), risk, (i.e., a noncontractual “incurred” clude guest plaintiff against action defense to the *17 if This conclusion is dictated or defendant. wanton wilful contributory negligence the species for is a incurred risk contributory negligence not defense available that is reason defendant. to a or wanton wilful hand, & Oil Co. v. in Indiana Natural Gas the other
On negli page 272, Supreme in O’Brien, supra, at our Court taking gence risk, doctrine of “incurred case the considered running properly the the risk” and held that risk or requires appreciated risk be that doctrine voluntarily expose person own choice himself to it his negli imprudence this connection the or in and further wholly gence immaterial, actor is wilfulness incurring incompatible risk is or inconsistent implicit in negligence. simple the same Pierce To effect is v. 65, (1943), N. Ind. 46 E. 2d Clemens 113 Pittsburgh Rwy. App. 431, 57 Ind. 107 Hoffman Depending upon authority line of in In N. which E. might, do, vary erroneously and often is selected we diana guest availability of defenses cases. OF NEGLIGENCE CONCEPTS APPLICATION IN GUEST CASES uncertainty presently heretofore and addition guest concerning which defenses are available in extant uncertainty to a related relative the stand- cases, is there being particular by defense considered tests ards guest cases. applied in is be well-established that a is, or be defendant-host should
It statute, guest 201, 1, Acts ch. as Indiana under § reasonably assessed, prudent rather than that must which person. * *” * (Burns’ amended and as 47-1021 found Stat. Ann. § Repl.), guest simple negligence, is not liable to his i.e., by conduct not of reasonable measured standard do; care nor what a reasonable man would or would not nor guest may recovery merely barred from he because contributorily negligent opposed contributorily have been wilful or wanton. These statements are so made as to often broaching constitute virtual truisms in no rational the law Indiana, however, contradiction. The case law does not readily justify impregnability confidence these principles. contrary, seem, To the it some would decisions support guest lend parties rational to a contention that cases sometimes must have their conduct tested the stand- ard of reasonable care. great
A deal of the confusion has come about reason judicial attempts guest prin- in automobile cases utilize ciples simple negligence earlier enunciated in cases. This particularly has been true when the of assumed or defense Many incurred risk is claimed. automobile decisions *18 rely upon negligence simple statements drawn from cases. therefore, is, language It dealing understandable how in concepts negligence, e.g., of standard, man” “reasonable occasionally guest crept despite has into cases the fact that solely the latter situations we are concerned with wanton part or wilful misconduct on the of a defendant and/or contributory or part wanton wilful misconduct on the of a plaintiff. primary opinion The court and the in this case inadvertantly, believe, placed I have also incurred or assumed inapplicable negligence risk within an framework of concepts. given by In the statement of reasons the trial for sustaining the motion for new trial it is said that:
“ * * * plaintiff *. knew inor the exercise of rea- sonable care have should known of defendant’s intoxicated ” * * * condition Judge primary opinion and in the Lowdermilk observes that nothing expected “appellant did would be of an ordinarily for prudent circumstances man under such reasonable and contrary safety.” pronouncements run own his These guidelines cases stated proper as evaluation 2d 255 N. E. (1970), Brueckner v. Jones 535, 543: Appellate Supreme Courts 1937 the Indiana “Since guidelines courts to for the lower certain
have laid down evaluating guest examination of these cases. An follow authorities indicates: standing alone, judgment or a mistake a. An error оf host, or to wanton wilful part will not amount
on the misconduct. adverse manifested an attitude b. The must have host guest, ‘perverseness’, in that the host must to the or consequences
have he indifferent shown conduct. leading up host conduct of the
c. The course of entire must be considered. to the accident knowledge danger had host must have actual d. The confronting guest.” E. 2d 1. 186 N. also Clouse Peden See obviously requirements con- in Brueckner set forth four guest. The and not the of a host-driver cern the conduct readily just requirements, however, and are are as valid guest’s conduct, i.e., he adaptable to a consideration of the disregard for his or reckless own life must have shown consequences safety; been indifferent he must have himself; he had actual conduct to must have driver’s danger confronting him; knowledge and his entire course leading injury up must considered. This of conduct not be construed identical with or standard should test determining assumed incurred the test used risk. knowledge danger contributory wanton or wilful actual *19 knowledge that under all the circumstances means misconduct Kelly likely probable. injury Mazza v. or See guest 33, 258 171. The must N. E. 2d be con- sciously doing knowledge what he wants to do with full existing likely probably conditions which or would lead to injury. risk, however, In incurred or actual assumed knowledge knowledge particular means and realization of the appreciation risk involved and an actual of that risk. my colleagues allowing concepts
I do not criticize language simple negligence their consid- to infiltrate responsibilities required eration of the duties the In- guest Burger statute, diana for as stated Chief Justice York, City Tax Walz v. Commission New Cause No. —135, —, (Decided 4,May 1970): U. S. inconsistency opinions “The considerable internal what, may retrospect, of the Court derives from have sweeping aspects been too that seemed clear in relation to the have limited utterances or of these [defenses] particular cases but meaning general principles.” necessary, juncture time, advisable, at this if not It is clarify, however, the traditional not further confuse that we guest liability Indiana and defense under theories policy scope is for reasons Either of the statute statute. wanton, is wilful or or statute restricted to conduct which negligence practical simple matter a branch of law. is as a but interchange concepts hope cannot continue to We stability requisite in the law. retain Assembly analysis, perhaps final it is for our General considerations, public perhaps policy
to reassess or it is concerning Supreme for our Court unsnarl the law defenses negligence any proper place concepts If cases. have highest guest situations, our court should delineate automobile narrowly specific application. instances of gauge my view, however, guest-plain- we must
It solely by conduct or host-defendant’s wilful wan- tiff’s standards. ton
THE EVIDENCE ADDUCED NOT BELOW DOES INDICATE THAT PLAINTIFF OR INCURRED ASSUMED
THE RISK AAS MATTER OF OR THAT LAW AS A MATTER OF LAW HE WAS CONTRIBUTORILY
WILFUL OR WANTON My separate opinion think, important, here I has set fоrth but peripheral, My nevertheless prior matters. discussion primarily takes issues with the method which the result primary opinion. obtained in the More and to basic point analysis is an of the evidence taken below. Such evi- not, my view, does support dence as a conclusion that plaintiff matter of law assumed or incurred the risk his injury or that contributorily he was wilful or wanton in his actions. surrounding factual circumstances the cause of action
brought not, think, bring below do I plaintiff’s conduct within assumption the ambit of the of risk or incurred risk doctrine. necessarily “voluntary” Those defenses assump- involve the incurring tion or of a “known” sure, risk. To be one who “voluntarily” becomes intoxicated to the extent that he is mentally knowingly unable to voluntarily assume a risk or even to be aware of the permitted risk should not be benefit An person conduct. intoxicated should not be any position better to recover from a wilful or wanton automobile host than person. a sober Nevertheless, the drunk’s conduct сannot assumption be forced into the of risk or in- pigeon curred risk hole. The elements of voluntariness or strikingly awareness are legal absent. We cannot tailor doc- trine to suit a result oriented jus- decision. We must achieve through law, tice spite not in of it. assuming arguendo
Even the case before us was a proper one for decision the assumed or incurred risk “guest” which, theory, case when viewed the evi- case, in this seems question dence on determinative Thompson Pickle 191 N. E. 2d Thompson case, Judge speaking Hunter for the synonym phrase “assumption court used the of risk” aas for “incurred risk” its technical sense and held: “ * * * assumption The doctrine of of risk involves a vol- untary choice individual between a course action * * * dangerous dangerous
known to that is one not question Therefore are inclined we to believe that voluntary assumption question of risk was a fact for the jury to determine from all of the evidence and law on given the issue court’s instructions. Thе having appellees upon found the evidence we cannot *21 say as a of imperative matter law such evidence renders opposite an result.” Judge Ridgway Yenny cited also Lombardo Hunter & interpreting E. 2d 57 N. holding Ridgway said: “ * * * plaintiff The court said that the failure of the to get a necessarily car out of the at this did not time constitute assumption risk, voluntary plaintiff as of was in an quite possible it would be unfamiliar area that she greater danger by getting even a
would encounter the car. This was out of question may on which men reasonable differ, properly it jury.” was (Em- therefore left for the phasis supplied) Upon us, i.e., here hour, the facts before the lateness of the plaintiff-appellee the fact that Collins was in downtown Fort home, Wayne quite a from distance and in view of his condi- tion, Collins, to it, the choice left even were he able make presented plaintiff was similar to choice in the may Ridgway truly and therefore not case have been volun- tary. person
The conduct of intoxicated circumstance, might very however, contributory well constitute wilful or recovery. wanton so as to misconduct bar his case before us, decided, I have believe should been treated and not on risk, or the basis of assumed incurred but rather on the basis contributory of wilful or wanton part misconduct on however, view, evidence in this
plaintiff. I that the am of the justify a determination contribu- not such as to cause was as a matter law. tory or misconduct It must wilful wanton Schlademan, opinion pathologist Dr. be noted concerning upon the the effect of alcohol human who testified “might appellee .24 body, Grabler’s blood-alcohol content of general by changes speech perhaps or indicated vision— fairly high instability Thus, state of intoxication.” Collins companion might not have been able to detect that his was might reasonably intoxicated, at least find. so experienced The Doctor also stated that drinkers can oftеn people it; mask their “In other words intoxication. some show people The Doctor some don’t.” further testified on redirect “might ten if he drank it examination beers affect his ability perceive (Emphasis sup- intoxication another.” plied) addition, agree I am unable as concluded liquor
majority
the defend-
amount
consumed
necessarily
appellant,
ant-appellee was
known to the
nor
majority opinion
that defendant was
concluded
also
intoxicating beverages
necessarily under
the influence
testimony
must have been
earlier
condition
known. The
respects.
not
conclusive
these
Dr. Schlademan
*22
“might
in terms of what
testified
be.”
Doctor
decision,
very
Pfluger
recent
a
Illinois
Sloma v.
323,
very
legal
2d
similar
and factual
issue
261 N. E.
correctly so as
follows:
determined
was
question
case,
plaintiff
“In this
whether
—in
Carpenter
drinking
accepting the
after the
bout
ride with
falling
immediately
getting
asleep
upon
into the
guilty
conduct,
pickup truck —was
wilful and wanton
detеrmination,
clearly
question
jury’s
of fact for the
was
omitted).
(citations
“ * **
indicate,
person
cases
As the above-cited
when one
drinking,
accompanied another
then
has
rides with
who
him
leaving
asleep
driver alone
even falls
with his
province
normally
jury
task,
be within
it will
particular
case,
under the
facts of each
to determine wheth-
guilty
er
wilful
conduct
wanton
doing.
jury’s
regard
so
determination in this
was not
contrary
weight
to the manifest
of the evidence.”
may
evidence
support
jury
While the
here
such as to
finding
way, i.e.,
plaintiff may
may
either
not have
contributorily
wanton,
been
wilful or
such circumstance does
justify
granting
not
aof motion for new trial. To the con-
trary,
requires
of the facts
state
us to reverse and rein-
jury’s
state the
verdict below. Since reasonable minds could
below,
differ
an assessment of the evidence
I believe
jury’s
verdict must stand.
I would reverse and remand this cause to
court
with instructions to
reinstate the verdict of the
and to
judgment
enter
thereon.
Reported in
Note. — Employment Board Indiana Review Cantrell Security et al. Division petition rehearing October 1970. No Filed 270A30. [No. filed.]