Botto v. Fischesser

• Decision Date: 20 March 1963
• Docket Number: No. 37505,37505
• Citation: 174 Ohio St. 322,22 O.O.2d 380,189 N.E.2d 127
• Parties: , 22 O.O.2d 380 BOTTO et al., Appellants, v. FISCHESSER, a Minor, et al., Appellees.
• Court: Ohio Supreme Court

Page 322

174 Ohio St. 322

189 N.E.2d 127, 22 O.O.2d 380

BOTTO et al., Appellants, v. FISCHESSER, a Minor, et al., Appellees.

No. 37505.

Supreme Court of Ohio.

March 20, 1963.

Syllabus by the Court.

1. Upon a motion for a directed verdict, the trial judge must construe the evidence most strongly in favor of the party against whom the motion is directed, and where there is evidence of a substantial nature to support his side of the case, upon which reasonable minds might reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the judge's determination in disposing of such motion. (Paragraph one of the syllabus in Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10, approved and followed.)

2. Wanton misconduct under the guest statute (Section 4515.02, Revised Code) by the operator of a motor vehicle may consist of deliberately perverse behavior, with such reckless and inexcusable conduct in driving the vehicle as to endanger the safety of the occupants therein.

3. A directed verdict for defendant at the close of plaintiff's case in chief in an action to recover damages for personal injuries is improper and a jury question is presented on the issue of wanton misconduct, where plaintiff's evidence, construed most favorably to him, shows that defendant, a 15-year-old boy without a driver's license, unauthorizedly appropriated his father's automobile and took two minor companions for a ride; that he spun the rear wheels of the car in gravel when starting; that he entered two stop streets, known by him to be such, without stopping, making two right-hand turns at a higher than safe speed in the circumstances, causing the rear end of the car to swerve considerably, over the protests of his companions; that he exhibited an attitude of bravado; and then he dinally smashed into a tree at a speed of approximately 40 miles an hour near the second right-hand turn, thereby causing extensive damage to the front of the automobile and injuring all three occupants.

Two actions were instituted in the Court of Common Pleas of Hamilton County; one by Raymond Botto to recover medical expenses and hospital bills, paid, contracted or in prospect on behalf of his minor son, Kenneth Botton, on account of injuries sustained by the son in the smashup of an automobile in which he was a passenger; and the other by Kenneth Botto, a minor, by and through Raymond Botto, his father, next friend and natural guardian, to recover damages for personal injuries received in the same incident. Named in both cases as defendants are Roger Fischesser, a minor, and Thelma Fischesser, his mother, both of whom answered the petitions by general denials.

The cases were consolidated for purposes of trial and were also consolidated on the subsequent appeals.

Section 4515.02, Revised Code, commonly known as the guest statute, is involved.

At the close of the plaintiffs' evidence in chief, the trial court, on motions therefor, directed the jury to return verdicts for both defendants on the ground that no 'wanton or willful misconduct' had been shown on the part of either, and judgments were rendered accordingly.

On appeals on questions of law to the Court of Appeals, that court affirmed the judgments below, one judge dissenting in part, and the causes are now here for disposition on their merits following allowance of a motion, in which both plaintiffs joined, to require the Court of Appeals to certify the records.

Eugene Droder and Donald A. Fisher, Cincinnati, for appellants.

Dolle, O'Donnell, Cash, Fee & Hahn and Melvin J. Kessel, Cincinnati, for appellees.

ZIMMERMAN, Judge.

The sole question for determination is whether the evidence introduced by the plaintiffs is of such a character as to have presented a jury question on the issue of wanton or willful misconduct by the defendants.

It is axiomatic that, upon a motion for a directed verdict, the trial judge must construe the evidence most strongly in favor of the party against whom the motion is directed, and where there is evidence of a substantial nature to support his side of the case, upon which reasonable minds might reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in disposing of such motion. 52 Ohio Jurisprudence (2d), 629 et seq., Section 24; Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10.

Plaintiffs' evidence, considered in the light most favorable to them, shows that on the morning of July 10, 1958, a passenger automobile belonging to Albert E. Fischesser, father of Roger Fischesser who was then 15 years old, was standing at the curb on Cambridge Avenue in the city of Cincinnati, in front of the Fischesser home. Thelma Fischesser, mother of Roger, gave him the keys to the automobile for the sole purpose of driving it into the yard of the Fischesser home to wash and wax it. This he had done two or three times before, although he had no driver's license. To his mother's knowledge, Roger had never driven the automobile alone for any other purpose. Later, as Roger was waxing the car in the yard, a school friend, Stanley Smith, aged 15, appeared. At that time Mrs. Fischesser was inside her home and late left for a nearby meeting. Roger and Stanley entered the automobile, and Roger unauthorizedly drove it to the Botto home on Roe Street, some six or eight blocks distant, stopped there and sounded the horn. Kenneth Botto, aged 14, a plaintiff herein, and another school friend, came out of his house, got into the car and asked Roger whether he had a driver's license, to which question Roger replied in the affirmative. All three boys occupied the front seat, and Roger started the car and spun the rear wheels so that gravel was thrown from the tires. He accelerated the speed and drove eastwardly toward Berwick Avenue at a rapid rate. Although he knew it existed, Roger ignored the stop sign at the intersection of Roe Street and Berwick Avenue and turned the car south onto Berwick Avenue in such a way as to cause the rear end to swing considerably. His two companions warned Roger to be careful or the police would catch him for speeding, 'to take it easy' and 'to look out, you are going to wreck this car.' Roger replied, with a 'funny grin' on his face, 'watch this.' He again accelerated the speed of the car and again he was admonished by his scared companions 'to take it easy.' The car proceeded over Berwick Avenue to Windward Avenue where there was another stop sign known to Roger and which he ignored.

Kenneth Botto testified that, 'after he [Roger] accelerated, after he straightened out and accelerated it [the automobile] was almost on the right side of the street, it took off faster and he went on down the street and there is a stop sign on the corner of Berwick and Windward and he took that corner real wide, too, and he went through the stop sign and the car went into passing gear.'

The automobile turned right onto Windward Avenue at a speed of approximately 40 miles an hour and some 70 feet from the corner of Berwick and Windward Avenue struck a tree with such force as to demolish the front end of the automobile and to injure the three occupants, Kenneth Botto sustaining the most serious injuries.

From the evidence as outlined above, could reasonable minds, as represented by the members of the jury, fairly reach the conclusion that Roger Fischesser was chargeable with wanton misconduct?

It would accomplish no good purpose to cite and discuss the many cases decided by this court wherein the issue of wanton misconduct was involved. Each of those cases was decided primarily on its own facts, and general rules, not always harmonious, were announced. The line between negligence and wanton misconduct is sometimes a fine one, and, bearing in mind that the guest statute (Section 4515.02, Revised Code), being in derogation of the common law, should not be extended beyond its reasonable limits, a court should exercise restraint in substituting its judgment for that of a jury and removing the case from the jury by a directed verdict.

The word, 'wanton,' in its ordinarily accepted sense connotes perverseness exhibited...