Angel v. Constable

• Citation: 57 N.E.2d 86
• Court: United States Court of Appeals (Ohio)
• Decision Date: 08 February 1943
• Parties: ANGEL v. CONSTABLE.

57 N.E.2d 86

ANGEL
v.
CONSTABLE.

Court of Appeals of Ohio, Second District, Montgomery County.

Feb. 8, 1943.

GEIGER, P. J., dissenting.

Action by Vina Angel, administratrix of the estate of Charles Angel, deceased, against James Constable for deceased's death as the result of defendant's negligent operation of his automobile, in which deceased was riding. Judgment for plaintiff, and defendant appeals.-[Editorial Statement.]

Affirmed, and cause remanded.

[57 N.E.2d 86]

Jacobson & Durst, of Dayton, for plaintiff-appellee.

Matthews, Matthews & Altick, of Dayton, for defendant-appellant.

HORNBECK, Judge.

This is an appeal on questions of law from a judgment for the plaintiff against the defendant in the sum of $13,900, entered upon a special verdict of the jury in the sum of $18,500 upon which a remittitur was ordered in the amount of $4,600. Eight errors are assigned:

1. In overruling appellant's motion for a direct verdict.

[57 N.E.2d 87]

2. In charging the jury.

3. Misconduct of counsel for plaintiff in argument to jury.

4. Damages assessed by the jury grossly excessive.

5. Given under the influence of passion and prejudice.

6. In overruling defendant's motion for judgment notwithstanding the special verdict.

7. In sustaining motion for plaintiff for judgment on special verdict.

8. In overruling defendant's motion for a new trial.

The action was for damages for the wrongful death of plaintiff's decedent claimed to have been caused by the wrongful act of defendant in the operation of his automobile on the night of February 20, 1941. The issues were raised by an amended petition and answer thereto. The amended petition avers and the record establishes that Charles Angel, plaintiff's decedent, on and prior to February 20, 1941, was in the employ of Mulford's Greenhouse, Dayton, Ohio, of which greenhouse the defendant was the manager and had control and supervision over decedent. On February 20, 1941, as had been the frequent practice of decedent, he reported to work at 7:30 a. m. His regular quitting time was 5 p. m. with thirty minutes off for lunch. On this day the business of the greenhouse being especially heavy, plaintiff's decedent was requested to work overtime in the evening. The practice in this situation was for decedent to take thirty minutes off for lunch about 7 p. m. and return to greenhouse for extra service. His practice when he worked overtime was either to walk to and from the nearest restaurant, about one-half mile away from the plant, for his evening lunch which was generally paid for by his employer, or to ride with defendant who would let decedent off at his home and pick him up later and return him to the plant. It was the claim of the plaintiff and found by the jury that defendant directed plaintiff's decedent to enter his car and accompany him to decedent's home. Two young women employees were also working overtime on the day in question and it is testified that when their regular work was completed at 3 p. m. they were told that if they would do overtime work defendant would take them to their homes and they were with the defendant and plaintiff's decedent at the time of the automobile accident. To reach the home of the women employees the defendant was required to drive his car southwardly on the Springboro Pike, Montgomery County, Ohio, and to proceed over the railroad tracks of the New York Central Railroad Company. About 50 feet north of the railroad crossing there is a curve in the pike to the left which was pleaded and admitted that defendant knew. This thorofare was an asphalt highway 18 feet wide. The amended petition especially avers that ‘Defendant, with full knowledge of the above facts, proceeded southwardly on said pike at a wantonly reckless rate of speed of 85 miles per hour despite the fact that it was then dark and despite the warning of the occupants of said car. He knew of, saw, and attempted to make said curve above described while operating said automobile at such speed of 85 miles per hour despite the aforesaid warning, and while so attempting to make said curve his car was caused to leave the highway, turned over several times and hurled said decedent therefrom, killing him instantly.’

The plaintiff claims that upon the evidence and her amended petition there were presented two theories upon which she had the right to recover, First, that plaintiff's decedent was not a guest of defendant but a passenger for consideration and that the ordinary rules of negligence apply in determining defendant's liability and Second, If, under the facts, it be found that plaintiff's decedent was a guest of defendant then the evidence established and the special verdict supported the charge of wanton misconduct against the defendant.

The claim of the defendant as set up in his answer urged in the trial and presented upon the assignments of error in this court is that the petition did not aver wanton misconduct, that the plaintiff was a guest of defendant in his automobile, that the elements of wanton misconduct are not established and that the accident was unavoidably brought about by a slow leak in the right front tire of the automobile.

Both parties requested special verdicts, the one prepared by the plaintiff conforming to her theory of the case, the one prepared by the defendant presenting factual findings conformable to his answer.

The jury returned the special finding tendered by the plaintiff and assessed the damages at $18,500 which the court reduced to $13,900 upon the acceptance of a remittitur by the plaintiff, the court finding the

[57 N.E.2d 88]

verdict excessive but not brought about by passion or prejudice. Counsel for defendant moved for a directed verdict at the conclusion of plaintiff's case and at the conclusion of the whole case which motions together with the motion for judgment notwithstanding the verdict were overruled, as was the motion for a new trial.

The major questions in this case are whether or not the plaintiff had the right to go to the jury on the claim that plaintiff's decedent was a passenger for compensation in the automobile of defendant and if she had not that right then, whether the testimony supported the finding of wanton misconduct against the...