Bailey v. Brown, 72-594

• Decision Date: 25 April 1973
• Docket Number: No. 72-594,72-594
• Citation: 34 Ohio St.2d 62,295 N.E.2d 672
• Parties: , 63 O.O.2d 92 BAILEY, Admr., Appellee, v. BROWN, Appellant.
• Court: Ohio Supreme Court

Page 62

34 Ohio St.2d 62

295 N.E.2d 672, 63 O.O.2d 92

BAILEY, Admr., Appellee, v. BROWN, Appellant.

No. 72-594.

Supreme Court of Ohio.

April 25, 1973.

Syllabus by the Court

1. 'Wilful misconduct,' as used in the Ohio guest statute (R.C. § 4515.02), implies an intention or purpose to do wrong, an intentional deviation from a clear duty or from a definite rule of conduct, and not a mere error of judgment (Paragraph three of the syllabus in Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122, approved and followed.)

2. 'Wanton misconduct' is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. (Paragraph two of the syllabus in Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, approved and followed.)

This is a wrongful death action brought by Russell R. Bailey, as administrator of the estate of his daughter, Barbara Jean Bailey, who was killed while riding as a passenger in an automobile driven by the defendant, Harry Glen Brown. Plaintiff's complaint, filed on May 25, 1971, alleges that the defendant was guilty of wanton negligence in that, while driving in Meigs County, Ohio, at a point near the junction of state route No. 7 and county road No. 36, he 'purposely and intentionally' turned his vehicle to the left and drove into the opposite lane of traffic into the path of an oncoming vehicle, which resulted in a collision, and that as a result Barbara Jean Bailey was killed.

The evidence discloses that on the night of May 26, 1969, at approximately midnight, the defendant, who was 16 years of age, was operating an automobile in a northerly direction on Route 7, a two-lane highway. Plaintiff's decedent, Barbara Jean Bailey, a passenger, was sitting on the right-hand side of the front seat, with another passenger seated in between. Defendant was driving at a speed of between 50 and 55 miles per hour.

Route 7, north of the village of Chester, is intersected from the west by Sumner Road, also known as county road No. 36. The terrain at the intersection is level. As the defendant proceeded north on Route 7 he was driving the vehicle in a normal manner, and there was no evidence of any erratic driving. As defendant approached the intersection, he applied his brakes, slowed down, and turned on his left-turn signal. He intended to turn into Summer Road. At about this time, an automobile driven by one Forrest Roger Barnett was proceeding in a southerly direction on Route 7 at about 50 miles per hour and approaching the intersection. There was another car stopped on Sumner Road, awaiting an opportunity to enter Route 7.

Defendant, after turning on his directional signal and slowing down, glanced up but did not stop, then started to turn left. This left turn took defendant's car into the path of the oncoming vehicle, and consequently a collision occurred in which plaintiff's decedent was killed.

The defendant testified that the only vehicle he saw at the intersection was the vehicle stopped on Sumner Road. He said that, as he approached the intersection, he had seen headlights at the 'top of the hill,' which he estimated to be a quarter of a mile north of the intersection. He further admitted on cross-examination that he did not know why he turned in front of the oncoming vehicle, but admitted that, if he had looked, he could have seen the vehicle.

A jury trial, held in the Court of Common Pleas, resulted in a verdict and a judgment for plaintiff. During trial, defendant moved for a directed verdict at the close of plaintiff's case and again at the conclusion of all the evidence. Both motions were overruled.

Defendant appealed, and the Court of Appeals, one judge dissenting, affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Halliday & Sheets, Warren F. Sheets, Gallipolis, Webster & Fultz, Bernard V. Fultz, Pomeroy, for appellee.

Walker, Mollica & Gall, Homer B. Gall, Jr., Athens, for appellant.

WILLIAM B. BROWN, Justice.

Since the parties agree that plaintiff's decedent was a guest in defendant's car, the liability that must be shown for plaintiff to prevail is regulated by R.C. § 4515.02, commonly known as the 'guest statute,' which states:

'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle.'

[1,2] The sole issue presented in this appeal is whether, under the evidence, reasonable minds could differ upon whether the conduct of defendant could be characterized as wilful or wanton misconduct. The issue arises by reason of defendant's motion for a directed verdict. Upon such a motion, the trial court is required to construe the evidence most strongly in favor of the party against whom it is made, and if it finds upon any determinative issue that reasonable minds could come to only one conclusion upon the evidence, and that conclusion is adverse to the nonmoving party, the motion must be sustained.

There is no question of fact in dispute. The only dispute is whether the conduct of defendant, considering all the circumstances, can be characterized as wilful or wanton misconduct.

Wilful misconduct is defined in paragraph three of the syllabus in Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.2d 122:

"Wilful misconduct,' as used in the Ohio guest statute, Section 6308-6, General Code, * * * implies an intention or purpose to do wrong, an intentional deviation from clear duty or from a definite rule of conduct, and not a mere error of judgment.'

It is essential to fathom the mind of the defendant to determine whether he had the requisite intent for his behavior to be considered wilful misconduct. As the court in Tighe, at page 527, 80 N.E. at page 127, explained intent:

'* * * The word, 'wilful,' used in the phrase, 'wilful misconduct,' implies intent, but the intention relates to the misconduct and not merely to the fact that some specific act,...