*1 Emmert, J., Arterburn, Landis, JJ., Bobbitt & concur. Reported in N. E. 2d 227.
Note. — Leininger.
Sаusaman 29,616. Rehearing [No. Filed December January 22, denied 1958.] *2 Peru, Cole, Cole, Wildman, & R. J. Wildman Wabash, Plummer, appellant. for H. Alfred Metzler, both of Campbell Arthur Charles Rochester, appellee. by appellee for instituted action was J. This
Achor, sustained damages personal recovery guest operated riding Ford in a 1938 finding and resulted in a appellant.1 the court Trial favoring $7,000.00. judgment appellee for specifications. five new trial cоntained Motion for appeal grounds upon on only relied The and is by sufficient evidence decision is not sustained contrary to law. alleged of wanton or wilful misconduct
The acts *3 injuries ap- proximately the appellant caused which appellant, lacked two pellee are as follows: The who driving being age, an auto- years of was months of by appellant uncle, by his which was mobile owned used the that when plеasure. constructed The car was so for by spring a key pin a be inserted was removed would in a in the column and the hole wheel appel- the was turned. On this occasion when wheel high friends, with the Akron school sоme of lant left through appellee, the one of for a drive whom was returning country. to Akron drove in In southerly Road 19. he direction on State When was owner, operator, person responsible opеra- “The or for the damage of a liable for loss or aris- tion ing motor vehicle shall not be injuries being transported guest, to or death vehicle, upon payment therefor, motor re- without operation thеreof, sulting are caused owner, or death unless such from the operator, of such the wanton or wilful misconduct person responsible operation of such motor Eepl. §47-1021, Burns’ 1952 vehicle.” five to city seven hundrеd feet north of limits and traveling per hour, from 50 to appellant pulled 65 miles ignition key out the and caused the car to coast into town key city with the removed. At the limits there degree was a 35 Appellant curvе in the road. turned the car into this curve which caused steer- ing wheel to lock. Thereafter the car traveled about 125 feet when hit a At tree. time the car was traveling per 35 to 40 hour. Appellee miles in- wаs jured as a result of this collision. urges
Appellant contrary the decision is to law evidence, for lack of in that there is no evidence show- ing wanton or operation wilful misconduct in the Appellant the сar. that his contends action was neither meaning wanton or wilful within the of the statute for reason alone knew his of mind and state testimony that his is uncontradicted that he had “tried ignition key many times and had found the lock (meсhanism) work,” did not and that when he drove causing the car with the out the probability in- jury thoughts.” my “was the least of Consequently, appellant contends, under the circum- operation stances the key removed, of the car with the judgment,” constituted no more than a “mistake of liability guest which there was no under the statute (§47-1021, Repl.). Burns’ 1952
However, we are confronted (1) the fact that jury right had a appellant’s disbelieve testimony
regarding knowledge operation (2) car2 chargeable regarding reasonable men *4 2. “. . . The assertions opportunity had no to discuss attorney matters with his attorney and that the did not advise rights of his expressly denied, constitutional are not necessarily but it does not follow that the evidence furnished no that, conflict as to or that required the trier of the facts was
512 Ap- resulting conduct.
probability of his the pellant he understood testified that when the front wheеls supposed mechanism was center, right, positions, namely, and in three left or he the mechanism that from his observation believed working. However, this inconsistent with was not car, testimony occupant had of of the who another frequently ridden in the car and understood that mechanism locked when the wheels were turned.
Furthermore, appellant’s
testimony
own
was that he
accept appellant’s
regard
statement
...
It is
as true.
always necessary
accept
testimony
simply
not
because
mony.
the
such
as true
_
directly
by
contradicted or denied
other testi-
right
The trial court had the
to consider the interest of
appellant,
probability
improbability
or
of his assertions
light
proved
facts,
apparent
in
rightness
which he
or admitted
his
forth-
thereof,
compulsions
or lack
the conditions and
under
testified,
probable
his wishes and desires and thе
effect
upon
taking
If,
him of a
favorable
unfavorable decision. ...
factors,
into consideration these and other
the uncorroborated
carry conviction,
statements of this
did not
we think
the court was entitled to disbelieve his assertions that his con-
rights
explained
by
attorney.
stitutional
were not
to him
his
vitally
.
.
. If the
in-
uncorroborated statements of a man so
merely
accepted
terested in
result
as true
becausе
denied,
expressly
such assertions have not been
and when other
point
direction,
facts and circumstances
in a different
it would
obviously
ready
escape
any
furnish a
avenue of
and all
imprisoned.”
who hаd been convicted and
Schmittler
State
(1950),
450, 464-465,
228 Ind.
Yet, occasion, knowing on this the car was constructed in such a manner that wheel removed, key would lock when the and also know- ing road, sharp consciously curve in the driving intentiоnally removed while at high speed sharply rate of and turned the car into the causing curve the wheels collision occur. saywe
Can as a matter of law that this action did not constitute “wanton or wilful misconduct”? The regard
rule
gen-
to such conduct
been
has
erally stated as follows:
“In
order
constitute
or wanton-
willfulness
meaning
rule,
ness within the
the acts or
operator
conduct of the
of the motor vehicle cаus-
ing
injury
done under circumstances
aware,
operator
which show that
from his
existing conditions,
prob-
it is
injury
able that
will result from his acts or omis-
sions,
indifference as
proceeds
and nevertheless
with reckless
consеquences,
or acts without
highway
consideration for others on the
or without
safety,
necessary
it
care for their
but
any
per-
the driver should have
ill will toward the
injured
son
ately
or that he intend to cause or -deliber-
cause,
question.
the accident or
precisely,
has
More
distinction
been held that
there is a
‘wanton,’
between the
terms ‘willful’ and
implies
cases,
‘willful’
used in such
expresses a reck
purpose,
‘wanton’
intent оr
S.,
disregard
consequences.” 60
J. Motor
less
Vehicles, §258, p.
Lafayette and
The
631. See:
Indianapolis
Company Railroad
Huffman
Indianapolis
287;
28 Ind.
The Terre Haute and
Company
Railroad
v. Graham
follows:
our cоurts as
The rule has been stated
or wanton misconduct consists
“Willful
*6
wrongful
doing
act
intentional
of a
conscious
duty,
in
or ommission of a
with reckless
consequences,
difference to
under circum
has
stances which show
doer
knowledge
will
existing
injury
conditions and that
probably
Becker v. Strater
part driver, wilfulness, such malice or injury as related to the to his guests, and that such on no motive existed part appellant. of this concur in the fact that We to constitute “willful or wanton misconduct” there must “perverse motive,” be a the misconduct must be and intentional and of such a nature that conscious existing injury prob- under the known conditions will ably However, stated, therefrom. result as heretofore wrongful not mean that does conduct of the by malice, will, driver must motivated ill or intent injure. (§47-1021, supra) to statute uses the Our disjunctive. words or wilful” in the “wanton There- fore, it to is meet the condition of the statute sufficient if the misconduct wanton. is appellant youth a
The fact that was and that wanton may young people impulses be natural does not ex- does cuse of his misconduct. Neither immaturity contemplate excuse his failure nothing consequеnces of his act. There legislative in the intent statute which indicates ap- place on the statute as we one construction should plied young people and another to adults. There- fore, determining of motor whether driver knowledge probably vehicle had would re- misconduct, responsibility sult from his wanton be measured standard intelligence ordinary with which reasonable men of chargeable under Under the circumstances. our person, young old, operate no can an auto- statute public highway mobile on the in a manner controlled motive, impulse wanton known under conditions likely being legally produce injury, respon- without thereby. sible to caused which, assume, jury, composed Here the we ordinarily men, reasonable had it evidence before might consciously
which believe that with reckless indifference to consе- quences, drove car with removed. *7 chargeable, ordinary He was as are reasonable men of intelligence, with ac- that his conduct was companied high degree
to his would result therefrom. Under thesе cir- liberty cumstances court at to disturb the jury. Pierce v. verdict of Clemens App. E. 2d 836. N.
Judgment affirmed.
Emmert, J., Arterburn, J., concur. dissenting
Bobbitt, J., opinion.
Landis, J., participating. not
Dissenting
Opinion
J. This case
petition
is before us on
Bobbitt,
petition
transfer.
I think the
denied,
should be
and I
dissent
majority
from the
opinion for
the reasons
Appellate
stated in
opinion
Court
appears
as it
Leininger
Sausaman