DISSENTING OPINION ON PETITION FOR REHEARING. In my original dissenting opinion, I gave no attention to the questioned instructions to the discussion of which the opinion of the majority of the court, both original and on rehearing, has been chiefly devoted, believing then, as I do now, that under the uncontradicted evidence of appellant himself a right result was reached, and that there should be no reversal even if the challenged instructions constituted intervening error. I conclude, however, that these instructions may well have brief consideration in the light of Indiana authorities.
It is averred in each paragraph of the complaint that appellee "contemplated and intended to drive said automobile from Indianapolis, Indiana, to Danville, Illinois, and on said date invited the plaintiff herein to become his *Page 43 guest and ride in defendant's automobile with him on said trip, and plaintiff then and there accepted said invitation and became the guest of said defendant, as a passenger in said automobile."
There are no other averments as to how it happened that appellant was in appellee's automobile. There is no suggestion that he was there by mere consent or permission. If appellant occupied appellee's automobile only by the consent or permission of appellee he was simply a licensee, but if he occupied it by the invitation of appellee he was an invited guest. This court has repeatedly recognized that the duty owing to an invited guest is not the same as that owing to a licensee. In Thistlewaite v.Heck (1921), 75 Ind. App. 359, 128 N.E. 611, the opinion being written by McMahan, J., the writer of the majority opinion in this case, the distinction is recognized, the court saying that "mere permission without more, involves `leave or license,' but bestows no right and care." Other authorities to the same effect are Pittsburgh, etc., R. Co. v. Hall (1910),46 Ind. App. 219, 90 N.E. 498; Chicago, etc., E. Co. v. Martin (1903),31 Ind. App. 308, 65 N.E. 591; Cleveland, etc., Co. v. Means (1915), 59 Ind. App. 383, 104 N.E. 785; Thiele v. McManus (1891), 3 Ind. App. 132, 28 N.E. 327; The Evansville, etc., R.Co. v. Griffin (1884), 100 Ind. 221; Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121.
As a practical definition for everyday use, mere permission is only consent, and mere consent is only permission, and "consent" without any qualification whatever is merely "consent." Appellant's tendered instruction 5, the refusal of which is made one of the grounds for reversal, embraced not only the contingency that appellant was occupying the automobile by invitation, which was all that the issues presented, but, alternatively, by consent which was beyond the issues. The instruction was not confined to the invited guest theory of the complaint, *Page 44 and therefore the court committed no error in refusing it.
H.H. Woodsmall, Inc., v. Steele (1924), 82 Ind. App. 58,141 N.E. 246; Hatten v. Hedell Furniture Factory (1920),72 Ind. App. 357, 125 N.E. 797; Baltimore, etc., R. Co. v. Peck (1913), 53 Ind. App. 281, 101 N.E. 674; Domestic Black Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675; Indiana RailwayCo. v. Mauer (1903), 160 Ind. 25, 66 N.E. 156.
The last case cited serves to illustrate the principle. The sole allegation of negligence in the complaint therein was the untimely starting of a street car before plaintiff had time to alight, and it was held that an instruction that if defendant's employee failed to assist plaintiff in leaving the car, defendant would be guilty of negligence, was error, though evidence as to such fact was received at the trial without objection. The effect of the fourth instruction given by the court is that if appellant was not an invited guest, he can not recover under the issues, and even if it be conceded that the court has not well stated the law as to liability where the injured party was riding at his own request and by sufferance, or without objection, the error was harmless for appellant under the issues can recover only if he was an invited guest. But, if it be conceded that the court committed error in refusing appellant's fifth instruction and in giving appellee's fourth, under the facts in this case as detailed by appellant himself, and as set out in the original dissenting opinion, a right result was reached, and the judgment of the trial court ought not to be reversed.
The controlling principle that should affirm the judgment, as set forth in the original dissenting opinion, has long been the law of this state. In Jonesboro, etc., Turnpike Co. v.Baldwin (1877), 57 Ind. 86, the court says: "If there is any proposition thoroughly established as a general rule it is this, that a party can not recover compensation *Page 45 for an injury, which, by the exercise of reasonable care, he could have avoided. Controversy is at an end upon this proposition."
In The Town of Gosport v. Evans (1887), 112 Ind. 133, 13 N.E. 256, the court says: "Where there is danger and the peril is known, whoever encounters it voluntarily and unnecessarily can not be regarded as exercising ordinary prudence, and therefore does so at his own risk."
In Morrison v. Board (1889), 116 Ind. 431, 19 N.E. 316, the court says: "The law accounts it negligence for one, unless under compulsion, to cast himself upon a known peril, from which a prudent person might reasonably anticipate injury."
In Pittsburgh, etc., R. Co. v. Hall (1910),46 Ind. App. 219, 90 N.E. 498, 91 N.E. 743, the court says: "It is well settled that one who voluntarily assumes a dangerous position, after notice or knowledge of the danger in ample time to secure a safe place, can not recover for an injury by reason of being in the dangerous position thus assumed."
In Ackerman v. Pere Marquette R. Co. (1915),58 Ind. App. 212, 108 N.E. 144, the court says: "A person who is placed in a dangerous position must exercise his reasoning faculties, and do all that a careful prudent man would do under the circumstances to avoid injury. The greater the danger the greater the precaution that should be taken."
In City of Vincennes v. Thuis (1902), 28 Ind. App. 523, 63 N.E. 315, the court says: "But, notwithstanding this rule, it is as much the duty of the guest to use reasonable care and judgment to learn of and avoid danger as it is the duty of the driver."
It thus appears that the rule that should affirm the judgment herein, and that controls in other states, is the well established law of Indiana. One can not submit himself to known peril where he has opportunity to escape, *Page 46 without assuming the risk. From the evidence of appellant as set out in the original dissenting opinion, can it be said that appellant did not encounter a known peril from which time after time he could have escaped, and that, therefore, in the light of all of these authorities he did not assume the risk, and that he should recover? The question answers itself.
Even though there were intervening errors by way of instructions or otherwise, it clearly appears under the evidence of appellant himself that a right result was reached, and there should be no reversal.
The case of Indianapolis, etc., R. Co. v. Schomberg (1905),164 Ind. 111, 72 N.E. 1041, thus states the rule that should govern in this appeal: "If we had any reason to believe, from an examination of the record, that the inaccuracies in the instructions in question were influential in bringing about a wrong result, or were probably prejudicial to appellant, we would not hesitate to order a reversal of the judgment. But what may be said to be uncontradicted evidence in the case clearly establishes that the verdict of the jury is right, and that the merits of the cause have been fairly tried and determined. It has been frequently affirmed by this court that the giving of an inaccurate instruction, which, under the facts in the case, can not be said to have prejudiced the complaining party in his substantial rights, will not justify a reversal of the judgment. Neither will an erroneous instruction warrant a reversal where it appears that the judgment upon the evidence is a correct result. In fact, Sec. 670 Burns 1901, Sec. 658 R.S. 1881, forbids a reversal in cases `where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.' The decisions in which this rule is sustained and enforced are numerous, and a reference to all is not necessary."
I am firmly convinced that this case should be affirmed. *Page 47