able persons respectively) shall have the custody | Association Journal: "The iron bands of of the person and the control of the education reasonless precedents bind our higher courts of such minor." I Nothing appears as to the character of the petitioner-let us hope that she is unblemished in this regard, and that she is prompted only by the highest regard for the little girl, but, so conceding, if she can by an ex parte adoption proceeding, in which she asks also for the custody of the child, accomplish her end as in this case, then any other stranger, though vile in character and wholly unfitted to be intrusted with the care of the child, can by deception accomplish the same end, and the court, not having discovered his error within the term, is helpless, and the child is sacrificed to the technicalities of law. I must be heard emphatically and affirmatively to oppose such a possible situation; quoting again from the above-mentioned lecture: "It is of first importance to realize * that statutes concerning practice and procedure generally prove as elastic as the courts will make them." * and through them the trial tribunals." commend the lecture to the careful, thoughtIt is clear by this statute and under the ful perusal of the bench and bar. While circumstances of this case, there being no it was delivered specially with reference to father or mother, and only an adoptive fa-criminal practice and procedure, its reasonther, who has shown himself apparently ing applies with equal force to civil practice without interest in the welfare of the child, and procedure. the guardian, even after his appointment and at the time of the filing of the application for the adoption of the child, was entitled to its custody as against any other person until, of course, it is made to appear that he is unfit to be intrusted with her custody. This has been the holding of the courts of this state from the earliest days of its jurisprudence (Bounell v. Berryhill, 2 Ind. 613; Johns v. Emmert, 62 Ind. 533; Grimes v. Butsch, 142 Ind. 113, 41 N. E. 328; Palin v. Voliva, 158 Ind. 381, 63 N. E. 760), and this is a right which the guardian can enforce by habeas corpus (Bounell v. Berryhill, supra). Certainly it should be the law as against one who has surreptitiously come into court and by an ex parte adoptive proceeding, and in the absence of the guardian who was charged with the custody of the child, sought to deprive him thereof. I assert that the welfare of the child should be the first consideration of the courts (Leonard v. Honisfager, 43 Ind. App. 607, 83 N. E. 91); and I contend that the court, upon receiving information of the mistake that he had made, and of the fraud that had been perpetrated upon him, if we are to accept as facts the averments of the petition of the amicus curiæ, and such information having come to him upon the last day of his term, or so near the close thereof that he could not hear the matter at that term, was justified in his discretion in not at once making a final order vacating the adoption, but instead thereof assigning the matter for hear-edy to meet every new emergency." Tarnow ing at the first day of the succeeding term, notifying appellant accordingly, and that by so acting he did not lose jurisdiction to vacate the order of adoption. Suppose, as it seems to have been understood by appellant at the time, that the adoption proceedings gave her the absolute right to the custody of the child as against the guardian, will it be contended that the welfare of the child must yield to the technicalities of the law, and, because of the fact that the guardian did not discover the step that had been taken until the custody of his ward was demanded of him by appellant, and so near the close of the term that he could not call the court's attention to its error in time for a hearing within that term, must such a situation thereafter preclude the court from correcting its error, and compel the guardian to surrender the custody of his ward? Truly, as Judge Kavanaugh says in his lecture before the St. Louis Bar Association, published in the April number of the American Bar But, if there is no rule of law that makes paramount the welfare of the child, then equity should come to the rescue, and I can think of no case that should appeal more to the chancery powers of the court. One of the well-established maxims of equity is that "equity will not suffer a wrong to be without a remedy," and it has been said that "a court of equity need not search for precedents, nor worry about the technical rules of law." Merrihew v. Parrott, 168 App. Div. 704, 154 N. Y. S. 747; and, "that justice may prevail, a court of equity will devise a rem v. Carmichael, 82 Neb. 1, 116 N. W. 1031. However, it is my opinion that in this case we do not need to resort to equity, and that the law can be reasonably construed so as to protect the child, and that it should be so done. It has been many times decided by this court, the Supreme Court, and by the courts of other states that a motion to vacate a judgment made at the term at which the judgment was rendered keeps the proceedings in fieri so that the motion may be ruled on at a subsequent term of court. Wabash Ry. Co. v. City of Gary, 191 Ind. 394, 132 N. E. 737; Vesey v. Day, 175 Ind. 406, 411, 94 N. É. 481; Sauer v. Sauer, 77 Ind. App. 22, 133 N. E. 169; State ex rel. v. McPike (Mo. App.) 243 S. W. 278; Stark Bros. v. Glaser, 19 Okl. 502, 91 P. 1040; Donaldson v. Copeland, 101 Ill. App. 252, 844; Id., 201 Ill. 540, 66 N. E. 844. It is true that no motion was filed in this case by any one a party to the proceeding, (148 N.E.) none could be filed by any one other than the petitioner herself, for the proceeding was wholly ex parte. But one whom we may reasonably assume that a deep interest in the welfare of the little girl-her mother's brother-and her guardian came to the court in the role of an amicus curiæ with information which moved the court, and the court, on its own motion, with commendable discretion waiting until it was further informed, set the matter for hearing at the earliest date to which a proper notice could be given, and caused the petitioner to be notified accordingly. As it seems to me, this was sufficient to keep the proceeding in fieri; certainly it should do so when it conduces to the welfare of a little girl. Our courts having held that the guardian of a child is not a proper party in proceedings such as here, we are certainly much in need of some legislation in this regard, MUNSON v. RUPKER. (No. 11796.) (Appellate Court of Indiana. June 3, 1925.) 1. Negligence 136(26)—Failure of guest to get out of automobile held not contributory negligence as matter of law. Automobile guest held not as matter of law guilty of such contributory negligence as barred recovery for injuries because he did not get out of automobile or refuse to continue trip. 2. Negligence 221⁄2-Operator of automobile owes invited guest duty of reasonable care. The owner or operator of an automobile owes to an invited guest the duty of exercising reasonable care in its operation, and not unreasonably to expose him to danger and injury by increasing hazard of travel. 3. Negligence 221⁄2-Driver of automobile owes guest at sufferance duty of reasonable care. An owner and driver of automobile owes a guest at sufferance duty of exercising reasonable care so as not to injure him. Chas. T. Hanna, and Thos. A. Daily, both of Indianapolis, and McNutt & McNutt, of Martinsville, for appellant. Fenton, Steers, Herbst & Klee, of Indianapolis, for appellee. MCMAHAN, J. Complaint by appellant in two paragraphs to recover damages on account of injuries received while riding in an automobile owned and driven by appellee. The first paragraph alleges that appellee invited appellant to become his guest and ride in defendant's automobile from Indianapolis, Ind., to Danville, Ill.; that appellant accepted the invitation, and that with others they started to make the trip; that while traveling on a highway west of Covington appellee drove the automobile in a careless manner at a speed of 40 miles an hour; and that on account of such excessive speed, appellee negligently lost control of the automobile and ran off the road into a ravine, causing the automobile to turn over and injure appellant. The second paragraph charges that appellee negligently drove the automobile at a speed of 40 miles an hour, "and while so driving said automobile he carelessly and negligently attempted to turn to the right upon a highway then and there running north and south, and on account of the speed of said automobile defendant could not then and there, and did not then and there, successfully make said turn, and carelessly and negligently drove said automobile off of both said highways into a ravine about 20 feet deep, causing said automobile to turn over." The issues being closed by a general denial, there was a trial by jury, which resulted in a verdict and judgment for the defendant, from which the plaintiff appeals. The error assigned relates to the overruling of the motion for a new trial. The accident which resulted in appellant's injury occurred Saturday, November 6, 1920. Appellant and Mr. Summers, who was riding in the rear seat of the automobile by the side of appellant at the time of the accident, were guests of appellee and his wife at their home the Sunday next prior to the day of 4. Negligence 221⁄2-Care required as to the accident. Each of them testified that guest in automobile. The law exacts of one who puts a force in motion that he shall control it with skill and care in proportion to danger created, which rule applies to automobile guest at sufferance as well as to guest by invitation Nichols, J., dissenting. Appeal from Circuit Court, Morgan County; A. M. Bain, Judge. Action by Samuel A. Munson against Herman H. Rupker. Judgment for defendant, and plaintiff appeals. Reversed, with directions. while at appellee's house on that Sunday appellee and his wife told them they were going to Danville, Ill., the following Saturday to visit Mrs. Rupker's parents and invited. appellant and Mr. Summers to go along with them. Appellee and his wife each deny having given them any such invitation. Their testimony in substance is that appellant and Mr. Summers were self-invited guests on the trip to Danville. Appellant contends that the court erred in giving and in refusing to give certain instructions. In answer to these contentions appellee says the evidence shows that appellant was guilty of such contributory negli For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The evidence shows that it took them at least an hour and a half to run from Emericksville to Crawfordsville-a distance of 40 miles. If it took an hour and a half to run that distance the average speed during that time was a trifle less than 27 miles an hour. The natural inference, then, is that they were not traveling at a speed of 35 to 40 miles an hour for any great distance before reaching Crawfordsville. gence as bars recovery, and that the giving | gotten back from Crawfordsville to Indianor refusal to give instructions would not, apolis by the interurban railroad, and from even though erroneous, be reversible error. Covington he could have gotten back on the The evidence bearing on the question of railroad. contributory negligence is in substance as follows: Mr. and Mrs. Rupker, with their small child, and Mr. Summers left the Rupker home about 2 p. m., and drove to appellant's office, where he got into the automobile. After stopping at a store for a few minutes, and at a filling station to get some gasoline, they started out on the Crawfordsville road. They stopped before leaving Indianapolis at Emericksville bridge, leaving there some time between 3 and 3:30, and reaching Crawfordsville about 5 p. m. where they stopped long enough for Mr. Rupker to get out and buy a flashlight. While at Crawfordsville appellant got out of the automobile, as he says, to "stretch himself." They stopped once between Crawfordsville and Covington, when appellant got out to inquire about the road to Covington. They stopped at Covington long enough to inquire the way. No one got out of the automobile at Coving-tomobile is as indefinite as it is as to the ton. The accident took place 4 miles west of Covington. It was dark at the time. The lights on the automobile had been turned on before they reached Covington. There is no evidence as to the character of the road other than that it was a gravel road at the place of the accident. Appellee testified that where there was a stretch of good road he would go at a speed of from 30 to 35 miles an hour, and at other times from 18 to 20 miles an hour. The evidence as to the speed after the parties left Crawfordsville and the times and places where appellant spoke to appellee about the speed of the au speed before reaching Crawfordsville. The automobile in which they were riding was an eight cylinder Peerless touring car. [1] We cannot under this evidence say as a matter of law that appellant should have gotten out at Crawfordsville or at any other place and not have gone any farther with the party, or that he was guilty of such negligence as necessarily bars a recovery. In Cram v. City of Des Moines, 185 Iowa, 1292, 172 N. W. 23, 18 N. C. C. A. 162, there was a judgment for defendant. On appeal the plaintiff, as in the instant case, challenged the action of the court in giving instructions, and the defendant contended that the action of the court in giving the instructions was not reversible error, for the reason that the evidence showed the plaintiff was guilty of contributory negligence and not entitled to recover in any event. In denying the contention the court said: Appellant testified that before reaching Covington, and while traveling a distance of 80 miles, he called appellee's attention to the speed of the automobile eight to twelve times; that on each of such occasions appellee was running about 35 or 40 miles an hour. The evidence does not show how many times appellant called appellee's attention to the speed before reaching Crawfordsville; nor does it show at what point or points on the road he spoke to appellee about the speed of the automobile. Appellant, when asked as to whether he spoke to appellant a number of times before reaching Crawfordsville, said he would not say it occurred a number of times, but that it occurred. It may according to his testimony have occurred but once while traveling the 40 miles before reaching Crawfordsville, and that one time may have been just after leaving Indianapolis. The "But we fail to see the applicability of the speed of the automobile, while traveling the rule. We are not favored with any suggestion last 30 or 35 miles before reaching Craw-how we may, in reason, hold, as matter of law, fordsville, may have been such as would not awarded. We are not prepared to say that if, that plaintiff must fail should a new trial be have impressed a reasonably prudent person on remand, a jury should find that the driver that it was unsafe to continue riding in the was not negligent, or that, if he was, the plainautomobile., Appellant testified that each tiff did not contribute to the negligence, we time he spoke to appellee about the speed should hold, on appeal, that such finding cannot they were going about 35 or 40 miles an be sustained on the evidence. For that mathour, which he said was too fast to suit him; ter, we cannot know in advance that plaintiff that it was because he anticipated that the will not add to the strength of his testimony. speed of the automobile might result in an The rule invoked by appellee is applied where injury that he warned appellee. When out of appellate court can find that some essential to the automobile at Crawfordsville he knew is where there is judgment against an officer recover is nonexistent. A familiar illustration appellee had been driving the automobile in for having levied upon property belonging to the manner as described by him; that he another than the execution defendant, and it apgot back into the car voluntarily; that he pears that no notice of ownership was served. made no demand that appellee stop the auto- As said, we cannot affirm on the ground that mobile and let him out; that he could have reversal and remand will be idle." Ind.) MUNSON v. RUPKER In Clark v. Traver, 205 App. Div. 206, 200| instruction No. 4 given by the court at the N. Y. S. 52, cited by appellee, the plaintiff request of appellee, wherein the court inand another man were sitting in the seat by structed the jury that, if it found "from the the side of the driver. They had gone 75 evidence that plaintiff was riding at his own or 80 miles at the terrific rate of 50, 60, and request and merely by sufferance or with70 miles an hour, slowing down to 45 or 50 out objection by defendant, and not as the miles an hour only when going through a invited guest," etc. Appellee's contention is town. One and only one complaint was made that appellant was simply a guest or passenby the plaintiff in that case, and that was ger in the automobile at sufferance or with shortly after they had started, and at a time his (appellee's) passive consent, and that unwhen, as the plaintiff testified, they were go- der such circumstances the only duty he ing between 60 and 70 miles an hour, and owed appellant was not to wantonly or inwhen he told the driver he "was going too tentionally injure him. fast," and that he, plaintiff, "did not care so much about riding that way." The facts in that case are not to be compared with the facts in the instant case. If in the instant case the testimony of appellee is to be given consideration in determining the question of appellant's negligence, a court or jury would be justified in finding that appellant was not guilty of any contributory negligence. If appellee's testimony is believed, it is clear he was not guilty of any negligence before reaching Covington. If he was not guilty of negligence before reaching Covington, we are not prepared to say that appellant was guilty of contributory negligence. Appellant by instruction No. 5, requested the court to instruct the jury that, if it found he was in appellee's automobile at the request or with the consent of appellee, that appellee failed to use reasonable care in the operation of his automobile, that appellant received his injuries by reason of such failure to use reasonable care, and without any negligence of appellant contributing thereto, their verdict should be for appellant. The court refused to give this instruction, but, after modifying it by inserting the word "active" before the word "consent," gave it as modified. Other similar changes were made in instructions tendered by appellant. Instruction No. 4, given by the court at the request of appellee, is as follows: The hospitality of an owner and driver of an automobile should not be burdened with a responsibility that makes it unreasonably hazardous for him to invite or even permit another to occupy a seat in his automobile. But one who takes another into one of these high-powered swiftly moving machines knows disaster may follow, unless he operates it with the required degree of care. He must know and realize that he has voluntarily As was said in O'Shea v. Lataken the life and safety of a human being into his care. voy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008: "He must realize that he has voluntarily received into his keeping the lives and safety of his passengers, and he should not be permitted to trifle therewith, or to renounce all responsibility in such respect." [2] The general rule as established by the authorities is that the owner or operator of an automobile owes to an invited guest the duty of exercising reasonable care in its operation and not unreasonably to expose him to danger and injury by increasing the haz ard of travel. Perkins v. Galloway (1915) 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190, second appeal Galloway v. Perkins, 198 Ala. 658, 73 So. 956; McGeever v. O'Byrne (1919) 203 Ala. 266, 82 So. 508; Spring v. McCabe v. Levy (1919) 213 Ill. App. 129; Masten v. (1921) 53 Cal. App. 330, 200 P. 41; Barnett Cousins (1919) 216 Ill. App. 268; Beard v. "One of the material allegations in plaintiff's Klusmeier (1914) 158 Ky. 153, 164 S. W. 319, complaint is that at the time of the accident 50 L. R. A. (N. S.) 1100; Ann. Cas. 1915D, 342; in question the plaintiff was riding with the de- Fitzjarrell v. Boyd (1914) 123 Md. 497, 91 A. fendant as the invited guest of said defendant. 547; Bauer v. Griess (1920) 105 Neb. 381, The court instructs you, if you find from the 181 N. W. 156; MacKenzie v. Oakley (1920) evidence that plaintiff was riding at his own request and merely by sufferance of or without 94 N. J. Law, 66, 108 A. 771; Tennessee, etc., objection by defendant, and not as the invited R. Co. v. Vanhoy (1920) 143 Tenn. 312, 226 S. guest of said defendant, and without any con- W. 225; Glick v. Bear (Wis.) 201 N. W. 752; tract between plaintiff and defendant whereby Pigeon v. Lane, 80 Conn. 237, 67 A. 888, 11 plaintiff was to compensate defendant, then in Ann. Cas. 371; Mayberry v. Sivey, 18 Kan. that case the defendant would owe no duty to 291; Avery v. Thompson, 117 Me.. 120, 103 A. plaintiff except not to injure him intentionally 4, L. R. A. 1918D, 205, Ann. Cas. 1918E, or willfully; and, if the facts be as indicated 1122; Hemington v. Hemington, 221 Mich. in this instruction, then your verdict should be for the defendant, unless you find from the evidence that defendant intentionally or willfully brought about the injuries complained of." We take it that the court by the use of the expression "active consent" meant to exclude That this acquiescence or implied consent. was what the court meant is made clear by 206, 190 N. W. 683; Clark v. Traver, 205 App. In Perkins v. Galloway, supra, after a review of the authorities; it was held: (1) One not a common carrier, who voluntarily undertakes to transport another in his automobile, is responsible for injury to the per son transported resulting from negligence, whether the service was for compensation or was gratuitous. (2) The duty of the owner of an automobile to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of the method of travel, but he must exercise the care and diligence which a man of reasonable prudence engaged in like business would exercise for his own protection and the protection of his family and property. of the driver or owner of the machine creates On the second appeal, Galloway v. Per-lessness or lack of diligence." The rule announced is followed and approved in Hemington v. Hemington, supra. "It does seem to be a harsh or hard rule In Pigeon v. Lane, supra, it was held that which makes the carrier or host liable to the as to the licensee the owner of the vehicle passenger or guest as for injury or death, in could be held liable for his "active neglithe absence of gross negligence or wantonness, gence" which would include his negligent especially when the passenger or guest is treat-acts by which the danger was increased, or ed by the carrier or host, just as the latter himself is treated, and when both are injured a new danger created, while the plaintiff by the same accident, as in this case. If this was riding under such license. be so, the reply is: The law is so written, and cannot and should not be changed to meet hard cases; such instability would make shipwreck of the law." dinary care. In Dickerson v. Connecticut Co., 98 Conn. 87, 118 A. 518, where a guest was injured while riding in an automobile, the defendant insisted that "active negligence" was the And, after calling attention to the fact plained; the court saying the term "active test of his liability. Pigeon v. Lane was exthat it had been held that a gratuitous car-negligence" meant no more than want of orrier of goods, like a gratuitous bailee of goods, was not liable to the owner of the goods, in the absence of gross negligence, it was held that the owner and driver of an automobile who undertakes to transport anoth-hicle must be guilty of gross negligence beer gratuitously is liable for injuries to such person, notwithstanding the rule as to the carriage of goods gratuitously by one not a common carrier. Referring to the evidence in that case the court said: tween an invitor and invitee in case of graA few jurisdictions have held that as betuitous transportation the driver of the ve fore he can be held liable for an accident. See Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, 18 N. C. C. A. 690. But in jurisdictions like Indiana, where there are no degrees of negligence, the doctrine of gross negligence is not applicable. "It was not necessary to a recovery that defendant himself should have expressly invited intestate to ride in the car. The deceased was There are also a few cases holding that a clearly not a trespasser, and was expressly in-person riding in an automobile for his own vited by one of the parties in the automobile, and his presence in the car was known and acceded to by the defendant. The duty of defendant not to injure the deceased was therefore the same as if he had expressly invited deceased to ride with him * Under all the evidence there can be no reasonable doubt that deceased was a passenger in the automobile, and that the defendant owed him the duty which he owed any other passenger therein, and this whether or not he was the defendant's expressly invited guest." (Our italics.) * hold the driver liable, unless the latter is accommodation, and gratuitously, cannot guilty of a wanton or intentional wrong. See Crider v. Yolande Coal, etc., Co., 206 Ala. 71, 89 So. 285, where the court, in speaking of one who was permitted to ride in a motor truck as an accommodation, and gratuitously, said: "He was at best a mere licensee, and assumed all the risks of carriage except such as might result from wanton or intentional wrong To the same effect see McGeever v. O'- or a failure to exercise due care to avert inByrne, supra. jury after his danger became apparent." This rule is stated in Huddy on Automobiles (5th Ed.) § 678, as follows: And in Lutvin v. Dopkus, 94 N. J. Law, "When the occupant of an automobile is in-actions were members of a social organiza64, 108 A. 862 (two cases), the parties to the jured through the operation of the machine, and it is shown that the driver was negligent and the occupant was not guilty of contributory negligence, it is clear that the latter can maintain an action against the driver and recover compensation for injuries. The fact that the occupant was a guest or gratuitous passenger tion, which held a celebration at Staten Island. The defendant, residing at Staten Island, and 'being the owner of an automobile, was solicited by the plaintiffs to take them to the picnic grounds and return in his automobile. On the return trip the car was |