*1 499 question only “To determine this we will consider the evi- appellee, together any dence most favorable to able with reason- may inferences which be drawn therefrom.” also; Hinds, McNair, See Executor Etc. et al. E.N. have reviewed the evidence and giving
We conclude that appellee together effect to the evidence favorable most with all inferences that be drawn contrary of the court is law decision and that the same should be affirmed.
Judgment affirmed. Prime,
Cooper,
JJ.,
Faulconer and
concur.
Reported in
[No. denied May 27, August 14, 1968. Transfer denied 1968.] *2 Rensselaer, Schwanke, Ellis, and Fred of Monti- Dale S. appellants. cello, for Moriarty, Jr., Rensse- J. Dumas and William B.
Thomas Monticello, appellees. for Siferd, S. laer, Charles Prime, brought by J. —An action was Woodrow Oliver to damages personal injuries recover by son, sustained his injuries Charles Oliver. Those resulted when the automobile riding bridge in which Charles was struck a abutment and overturned. Named in the was the suit estate of the auto, driver of the Earnest Clemons and third scene; occupant youth, died at the the Oliver alone survived the crash. by complaint
The issues were formed paragraphs. in two A motion strike directed paragraph to the second was joined sustained. The ultimate allega- issues were thus paragraph defendant-appellee’s tions one and answer there- general denial. Trial was commenced before After case, had the defendant moved the court to direct jury to return a verdict in defendant’s favor. motion *3 granted, judgment accordingly was was rendered on the verdict.
Appellee procedural objection raised a complaint re- sufficiency garding its to state a cause of action under the It is Guest Statute. contended that complaint since the did not guest, being contain the words “. . . transported while with- payment plaintiff therefor”, proceed out the theory must on a negligence. of objection common law must fail for two reasons.
First, if there is . theory doubt “. . as to what the of a
complaint
is,
gen
the
will determine it from the
scope
pleadings.”
eral
and tenor of the
Ott v. Perrin
App.
116 Ind.
tween theory upon tell what can not For this reason defendant this, pro- paragraph Paragraph II pleading is founded. If guest statute, is something it upon other than the ceeds upon theory that the proceed it and if does not so shown claimant nothing guest more car the it was a in Clemons Paragraph I.” pleading of than a restatement language Secondly, appellee cites several cases that contain position, support but in fact do that would seem not. supra, complaint quoted, held Ott Perrin it was that a v. theory lacking cause of on the words of art stated a action the n liability. opinion, however, of In the same that common law quoted. Ott the comment relied on court made decision part complaint. Long Archer dealt with a similar which allegation plaintiff construing There, that the effect of an allegation non-payment, the passenger, no was but court stated:
n paragraph “passenger” in term the first “The use of describing relationship the complaint, as the the between necessarily imply appellant, plaintiff does' not and the (cid:127) guest comtemplation plaintiff in the of the was a that statute.” the paragraph say, that the first cannot as matter of “We complaint was a within that the statute, meaning it but disclosed existence imposed relationship appellant some duty ordinary respect exercise care toward and with complaint be plaintiff. appellant desired the If the
the made more *4 plaintiff him specific the of the to as relation to (our emphasis). this be done” have moved that he should 186, Long (1943), 221 46 N. E. Archer Ind. accept- objecting plaintiff’s Here, then, the to is a defendant proof, stringent and wanton wilful more burden of a ance negligence. simple sur- misconduct, There was no instead
503 prise, theory nor complaint. was there doubt to the as of the impending prejudice, If defendant felt he could filed have a specific. motion to more make plaintiff requirements “If a fulfills the of the burden by placed upon alleging him such statute of wanton and misconduct, allegations wilful plaint merely the the fact that the com- of the plaintiff guest referred the as a and omitted allegation pay”, prejudice “without would not result in the to the defendant in the absence of motion to elect as to theory upon tried, which the cause was be whether
n theory liability under the common law or under the (1950), App. 66, statute.” Kirsch v. Harker 89 N. Ind. E. 2d 924. question
The sole we consider plain thus is whether the tiff-appellant failed, as a matter of to offer evidence of
probative prima value sufficient to establish examining question case. In court, this the trial turn, this must .consider all facts true, rebuttal, and then facts, decide whether those without would be sufficient to the recover dam allow the ages sought. examining presented by plaintiff, the facts it well
settled that all reasonable inferences that be from drawn indulged- plaintiff’s favor, the facts must be purpose determining necessity of the defendant presenting evidence, finally submitting issuable (1964), 324, Tuttle facts v. Reid N. Ind. 610; 390, 2d E. Clouse v. Peden 186 N. E. 243 Ind. 2d recovery action,
To establish a facie case for in this plaintiff’s evidence, together with all infer ences, preponderance must be sufficient to show injuries evidence, such Charles Oliver from wanton and wilful misconduct resulted of Earnest 259, 1229; 1, p. Acts of Ch. Burns’ § Statutes 47-1021. § *5 plaintiff’s evidence showed that had been Clemons during
drinking day, undertermined amount of an beer being that he under the influence of and was observed Further, operating alcohol. several witnesses saw Clemons addition, passed prior to the vehicle the vehicle the crash. high speed, 80-85 a rate of about miles another automobile at per hour, mile the crash scene. one within
These and inferences facts are thus observed: may automobile, possibly driven an Earnest Clemons have high speed, possibly rate at a and while under the influence bridge conduct, alcohol, if into a abutment. all factors finally proven, injury plaintiff. are serious We caused except point contingency factor, for Oliver’s out the of each things: injury, questioned, two is to' demonstrate which not might first, reasonably be found from the evidence that each presented so drawable and far and inferences every second, independent is from other. that each factor inferences, therefore, are, which of no inferences There may properly upon. there course be relied The fact not having precludes court, this possibility each occurred is a holding court, matter of law that one from as a and trial not more did occur. speed drunkenness evidence of neither nor alone is While purview the Guest wanton misconduct with the and wilful authority proposition Statute, that a there is excessive the influence who drives at driver under injures speed be held liable for those and together may constitute the injuries, the elemente since (1949), 227 Ind. Hubble v. Brown sanctionable misconduct. 202, 84 N. E. might actionable show
If evidence is which finally issues. wrong, jury’s decide the it is the function weigh evidence, empowered but not This court it the existence or find bound to examine we are would, if which inferences of facte and non-existence this made We have uncontroverted, to relief. entitle examination, fail, plaintiff-appellant that the did find establish The trial as a matter of case. directing against plaintiff, erred in verdict required have to come with his should defendant forward evidence.
Having proceedings found the aforementioned error in the *6 judgment below, we reverse the of the trial and remand .court proceedings opinion. for this cause not inconsistent with this Judgment reversed.
Carson, J., Cooper, J., C. concur.
Faulconer, J., opinion. dissents with
Dissenting Opinion Faulconer, judgment J. —I would affirm the trial court. appeal requires
This a consideration of the evidence set exceptions. agree forth in the appellee’s bill of I with conten- tion in his motion to dismiss or affirm that such bill is not properly The record certified. discloses that the Honorable Gordon, Judge Russell sole presided of the White Circuit Court Judge’s at the trial of this cause. certificate to the bill of signed by exceptions Zerface, Judge, Maurice White Circuit Court, showing any is no Indiana. There determination and unavailability as court order of the Honorable Russell reasons, any, sign Gordon as to the if for his failure to exceptions. prevents considering said bill of us from depending any error the evidence. Winn v. O’Neal, Sheriff, (1957), 264, 266, et al. etc. Ind. 139 N. 536. E. 2d agree majority’s
I further cannot with the conclusion that evidence, or there is sufficient reasonable inference by appellee’s of wilfull wanton misconduct decedent to this case to the take
Taking most the evidence favorable to appellant, against directed, drawing whom verdict was as true and do, required
all
inferences therefrom
we are
as
App.
Washington
73,
221 N. E.
Boswell
(transfer denied),
my opinion
it is
2d
Indiana rehearing April 22, petition No Filed filed.] 767A33. [No.