Collins v. Grabler

263 N.E.2d 201, 147 Ind. App. 584, 1970 Ind. App. LEXIS 420

• Court: Indiana Court of Appeals
• Decided: October 22, 1970
• Docket: 469A60
• Status: Published

Opinions

Lowdermilk, C.J.

This is an action brought by plaintiff-appellant against defendant-appellee for personal injuries growing out of a collision between an automobile operated by appellee in which appellant was a guest passenger and another motor vehicle.

Appellant charged, by his second amended complaint, which was amended at the close of the trial, acts of wanton misconduct on appellee’s part which proximately caused appellant’s injuries.

To appellant’s second amended complaint appellee filed answer in two paragraphs, the first being under Supreme Court Rule 1-3, and the second paragraph being in the affirmative and alleging appellant incurred the risk of the accident and injuries. The record discloses that during the trial appellee filed a motion for directed verdict at the conclusion of all the evidence, which was overruled by the court, and after which appellant asked leave to amend his second amended complaint by deleting therefrom the allegation of “willful” misconduct on the part of the appellee. This request was granted by the court and the allegation of willful misconduct was stricken, and is not now a question before this court.

The trial was had by jury, and a verdict for $10,000 was returned for the appellant and a judgment duly entered in that amount.

Appellee timely filed his motion for new trial on the following grounds: (1) The verdict of the jury is not sustained by sufficient evidence.

The next day appellee’s motion for new trial was granted, the court’s decree reading as follows:

“It is therefore considered, adjudged, decreed and ordered that it does not appear that substantial justice has been done by the verdict of the jury heretofore rendered in this cause; that the verdict of the jury in finding for the plaintiff and awarding damages upon such finding was not sustained by sufficient evidence and was against the clear preponderance of the evidence adduced in the trial of this cause; that the preponderance of the evidence adduced upon the trial of this cause was in favor of the defendant and against the plaintiff; that defendant’s motion for a new trial be and the same is hereby sustained and a new trial is ordered in this cause.” (Our emphasis.)

Subsequently, appellant filed his motion to make the order sustaining appellee’s motion for new trial more specific, which motion was denied by the court.

This court has heretofore ordered and directed the judge of the DeKalb Circuit Court to give his reasons in writing for sustaining appellee’s motion for a new trial, and the order has been complied with, and the additional reasons assigned are as follows:

“In response to the order of the Appellate Court of Indiana that ‘the Judge of the DeKalb Circuit Court set out the specific reasons on which he determined the verdict of the jury in finding for the Plaintiff and awarding damages upon such finding was not sustained by sufficient evidence and was against the clear preponderance of the evidence adduced in the trial of the cause,’ the Judge of the DeKalb Circuit Court respectfully states that the clear preponderance of the evidence, indeed the uncontroverted evidence, adduced in the trial of said cause shows:

“1. That the Plaintiff, Collins, and the Defendant, Grabler, got together on the night in question for the planned and expressed purpose of having a night on the town and to go from bar to bar to drink and to try and pick up some dates.

“2. That in the course of said evening from about 10:30 P.M. to 2:30 A.M., both the Plaintiff and the Defendant each consumed ten or more drinks of alcoholic beverages, the drinking of which occurred while the Plaintiff and the Defendant were in the presence of each other with each having knowledge of the number and type of drinks of alcoholic beverage consumed by the other.

“3. That the Plaintiff became intoxicated, sick and sleepy due to the drinks he had consumed during the evening; that the Plaintiff knew that the Defendant had consumed as many or more drinks as had the Plaintiff; that both the Plaintiff and the Defendant were intoxicated.

“4. That the Plaintiff accompanied the Defendant on the evening’s venture in Defendant’s vehicle with the Defendant as the driver thereof to the places where the intoxicating beverages were consumed; that the Plaintiff voluntarily entered Defendant’s vehicle with the Defendant as the driver thereof to be returned to his home at the conclusion of the drinking activities of the parties.

“5. That after leaving the last bar where the Plaintiff and Defendant had been drinking, until the bars were closed, and as the Plaintiff and Defendant made their uncertain way home, the Plaintiff had the Defendant stop the vehicle because the Plaintiff had to vomit; that after such act of vomiting, the Plaintiff voluntarily re-entered the vehicle driven by the Defendant for the ride home and the accident occurred shortly thereafter.

“6. That the accident which followed and the injuries to the Plaintiff resulting therefrom were the result of the intoxication of the Defendant, who recalled nothing of the trip after leaving the last bar except for the lights of more trucks than the evidence actually disclosed to have been present, which lights the Defendant thought he saw coming toward him in his lane of traffic just prior to the accident; that the Defendant swerved his car across the highway to avoid these trucks which he thought he saw coming in his lane of traffic and the collision occurred with vehicular traffic coming toward the Defendant in the opposite lane of traffic without any apparent application of the brakes on Defendant’s vehicle prior to the collision.

“7. That the Plaintiff was a guest in the vehicle driven by the Defendant during the entire course of their evening’s travels and adventure and the Plaintiff chose to remain the Defendant’s guest in Defendant’s vehicle on the trip home and further chose to re-enter such vehicle, after the same had been stopped to permit the Plaintiff to vomit, to continue the trip home.

“8. That at the time of the accident, the Defendant was so much under the influence of intoxicants that he was unfit to safely operate his vehicle and the Plaintiff knew or in the exercise of reasonable care should have known of Defendant’s intoxicated condition; that in deliberately and voluntarily entering the vehicle which was being driven by the Defendant and in deliberately and voluntarily reentering such vehicle after the same had been stopped and the Plaintiff had a choice whether or not to continue the trip home with the Defendant, the Plaintiff deliberately and voluntarily assumed the risks incident to such venture; that such deliberate and voluntary assumption of the risk should preclude recovery by the Plaintiff.

“9. That, the jury, having found for the Plaintiff and awarded damages to the Plaintiff, improperly ignored and failed to apply the doctrine of assumption of risk as above stated upon the factual situation as above set forth, and that the Defendant is accordingly entitled to a new trial.”

Appellant’s assignment of errors is that: (1) The court erred in sustaining appellee’s motion for a new trial.

The parties to this litigation were good friends. The appellee returned home from military service and the parties were celebrating appellee’s return home. The events that took place before the collision occurred commenced at a restaurant where appellant was employed. The restaurant was located about four miles east of Fort Wayne, between that city and New Haven, and about one-half mile north of Highways 30 and 24. The time was about 9:30 P.M.

They went to Fort Wayne, with the appellee driving his own automobile. The first stop was at a drive-in restaurant, where appellee had coffee and appellant a coke. After one-half hour there they went to the Bavarian Village, a tavern in downtown Fort Wayne. While there appellee drank scotch and appellant beer, with each having two drinks. They remained there approximately 45 minutes to an hour.

They went from there to the Lucky Shoe, with appellee driving and appellant noticed nothing out of the ordinary about appellee’s driving. At the Lucky Shoe, in a period of approximately one-half hour, each of them had three drinks, with appellant drinking beer and appellee drinking scotch.

Shortly after midnight they left the Lucky Shoe and went downtown to the Coney Island Hot Dog Stand, with appellee driving and appellant noticing nothing wrong with such driving. At the Coney Island Hot Dog Stand appellant had two hot dogs and appellee one. They were there fifteen to twenty minutes and walked two doors east to the Citadel, a tavern, arriving at approximately 12:30 A.M. At the Citadel appellant had one beer and appellee one scotch. The parties remained at the Citadel fifteen to twenty minutes and then walked back to the Coney Island. They returned to the appellee’s automobile and drove back to the Bavarian Village, with appellee still driving and appellant noticing nothing out of the ordinary about appellee’s driving at this time.

Appellant testified that at this time he noticed nothing at all about appellee’s physical condition and that appellee was talking all right and was not slurring his words or anything of that sort.

At 1:00 o’clock A.M. or a little later the parties arrived back at the Bavarian Village and ordered more drinks. At this point in the evening appellant began drinking gin, lemon and 7-Up and appellee remained with his scotch. Each had approximately three drinks.

At 2:00 A.M. came the final call for drinks and appellee ordered another scotch. Appellant had nothing further to drink at that time as he was sick at his stomach and tired and sleepy. Appellant left the Bavarian Village and went out and sat in appellee’s car on the passenger’s side of the front seat.

Appellee did not want to go home, but wanted to stay in the tavern and finish his drinks and talk with a soldier acquaintance he had made.

Appellant sat in appellee’s car and fell asleep. He next remembered the appellee opening the door of the car, which awakened him. He believes it was about 2:30 A.M. The parties had no conversation with one another at this time. Appellant noticed nothing about appellee’s condition at this time. The next thing appellant remembers is heading toward New Haven and stopping at the intersection of Anthony and Maumee in Fort Wayne, approximately two miles from the Bavarian Village, where appellant threw up, as he was very sick at his stomach. During this two mile drive appellant was asleep and noticed nothing about how the appellee was driving, but does remember that appellee said something about appellant being a pantywaist, not being able to hold his drinks, and called him a sissy.

Appellant did not ask to get out of the car when the driver stopped to permit him to vomit, did not observe appellee’s condition as to whether or not he was intoxicated and did not observe appellee’s driving. In fact, the record discloses that appellant did nothing that would be expected of an ordinarily reasonable and prudent man under such circumstances for his own safety. Appellant claims he immediately went to sleep as the trip was resumed and the next he heard was the gravel and dirt flying and he had been injured in the collision.

The parties and the court have used the words “assumed” risk and the words “incurred” risk interchangeably, which is understandable. We are of the opinion that since there was no contractual relationship between the parties shown in this cause that appellant’s getting into and riding in appellee’s car at the time and place in question presents the question of “incurred” risk and not a question of “assumed” risk.

We are confronted with the question as to whether the trial judge abused his discretion in sustaining the motion for a new trial as the thirteenth juror. Our statutory jurisdiction of this question is Burns’ Ind. Stat. § 2-3201 (b), as follows:

“A ruling or order of the court granting a motion for new trial shall be deemed to be a final judgment, and an appeal may be taken therefrom.”

In the case of Bailey v. Kain (1963), 135 Ind. App. 657, 192 N. E. 2d 486 (Transfer denied), from which Judge Smith quoted in the case of White v. Bardach (1968), 143 Ind. App. 586, 241 N. E. 2d 866, the court said:

“It therefore becomes the sole duty of this court to examine the record to see if (1) the trial court abused its judicial discretion, (2) a flagrant injustice has been done the appellant, or (3) a very strong case for relief from the trial court’s ordering a new trial has been made by the appellant. [Citing cases.]

“On consideration of a motion for a new trial, the trial judge has an imperative obligation to weigh the conflicting evidence. [Citing cases.]

“On a motion for a new trial it must clearly appear to the trial judge that substantial justice has been done and, if in his opinion the preponderance of the evidence is against the verdict, it is his duty to grant the new trial. [Citing cases.]

“We will be hesitant to overrule a trial court granting a motion for new trial for the reason that there are strong presumptions in favor of the trial court’s action, and it is therefore a sound precedent which dictates that this court should be reluctant to second guess a trial court in granting a motion for new trial. [Citing cases.]”

See, also: Barner v. Bayless (1893), 134 Ind. 600; Topper v. Dunn (1961), 132 Ind. App. 306, 177 N. E. 2d 382; Wildwood Manor v. Gary National Bank (1970), 146 Ind. App. 296, 255 N. E. 2d 128, 20 Ind. Dec. 226.

The trial judge clearly set out his reasons for his sustaining a motion for new trial, which reasons have been heretofore set forth in this opinion. This court required supplemental reasons from the trial judge and they were submitted and have been set forth herein. After a complete review of the evidence, together with a careful study of the trial judge’s reasons for ordering a new trial, we are of the opinion that:

1. The trial court did not abuse its judicial discretion in granting the new trial;

2. No injustice has been done to the appellant; and

3. There has not been a strong case for the relief from the trial court’s ordering a new trial made by the appellant.

If either one of the reasons given by the court for its action in granting a motion for new trial is sufficient reason therefor, it is not incumbent upon this court to discuss the other reasons. White v. Bardach, supra.

We will not go behind the motion for new trial and the written reasons stated by the trial judge in granting the motion for a new trial; the only error alleged was that the trial court granted a motion for new trial and this we have fully considered.

The court does now hereby remand this cause to the trial court for a new trial.

Judgment affirmed.

* Cooper, J., concurs; Carson, J., concurs with opinion; Sullivan, J., dissents with opinion.