Denzer v. Terpstra

• Decision Date: 27 November 1934
• Docket Number: 24666
• Citation: 129 Ohio St. 1,193 N.E. 647
• Parties: Denzer v. Terpstra.
• Court: Ohio Supreme Court

193 N.E. 647

129 Ohio St. 1

Denzer v. Terpstra.

No. 24666

Supreme Court of Ohio

November 27, 1934

Negligence - "Willful tort" and "wanton negligence" not synonymous - "Willful tort" defined - Charge to jury, unsupported by evidence, erroneous.

1.

The terms "willful tort" and "wanton negligence" are not synonymous.

2.

The term "willful tort" involves an intent, purpose or design to injure. (Paragraph I of the syllabus in the case of Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, approved and followed.)

3.

It is prejudicially erroneous for a trial court to charge a jury on the subject of willful tort when such charge is unsupported by evidence.

In the trial court the position of the parties was the reverse of that in which they now appear.

In his petition the plaintiff, Terpstra, asked damages for injuries suffered to his person on the evening of February 21, 1930, when a horse upon which the plaintiff was riding and an automobile driven by the defendant, Denzer came into collision on state highway No. 4 north of the city of Bucyrus. Upon the trial of the case the jury returned a verdict for the plaintiff in the sum of $5,000. Judgment was entered for this amount.

Error was prosecuted to the Court of Appeals resulting in an affirmance of the judgment.

The case is in this court by reason of the allowance of a motion to certify.

Messrs. Ballard & Hensel and Mr. W. J. Schwenck, for plaintiff in error.

Mr. Charles F. Schaber, for defendant in error.

WEYGANDT C. J.

This court is of the opinion that the only assignment of error requiring extended consideration and discussion at this time is the one relating to the charge of the trial court on the subject of willful tort, inaccurately designated as "willful negligence."

The plaintiff's petition alleges that "the injuries he received and the expenses incurred as aforesaid were due solely and wholly to, and as a direct and proximate result of the negligent, reckless, unlawful, willful and wanton acts on the part of the defendant." Then follow ten specifications.

Near the close of the court's charge to the jury the following appears:

"By Mr. Schaber: I believe the court should instruct the jury that if any of these acts were willful acts on the part of the defendant, that any contributory negligence on the part of the plaintiff would not be a defense for the defendant.

"By Mr. Hensel: There is no evidence in the rec- ord to justify a charge of malice or wanton negligence.

"By Mr. Schaber: It is in the pleadings.

"By the Court: The court charges you, members of the jury, that if you find any of these acts of negligence complained of in the petition to have been willfully done, and by willfully is meant intentionally done, then as to that act, that willful act, any acts of negligence-contributory negligence-would not be a defense and as to that, if you so find, any willful negligence, the contributory negligence of the plaintiff, if you find he was guilty of contributory negligence, as I have explained it to you, would not defeat his recovery. "

Thus it is evident that the court charged the jury on the subject of willful tort but not as to wanton negligence although both are mentioned in the petition.

It is vigorously urged by the defendant that it was prejudicially erroneous for the court to charge with reference to willful tort because it is not pleaded in the specifications, and for the further reason that there is no evidence to support such an instruction. It will be sufficient to discuss the latter contention.

Does the evidence justify a charge on the subject of willful tort?

It is highly essential to keep clearly in mind the precise meaning of the term "willful tort." It implies intent or purpose to injure. It is not synonymous with wanton negligence. It involves design, set purpose, intention. It is not negligence. Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, 191 N.E. , 745; Payne, Dir. Genl. of Rds., v. Vance, 103 Ohio St. 59, 133 N.E. , 85.

Does the evidence tend to show that the defendant intended, purposed or designed to injure anyone?

The collision occurred at about seven-fifteen, P.M. It was dark. The paved portion of the highway was seventeen feet wide. The defendant was operating his automobile in a northerly direction, and the plaintiff was riding toward the south. There is a sharp dispute as to the position of the horse and the automobile. The plaintiff testified that his horse was properly on the westerly side of the highway, and that the defendant drove his automobile onto the same side. The defendant testified that his automobile was properly on the easterly side of the highway, and that the horse lunged over to this side. Likewise there was a dispute as to whether the headlights on the defendant's automobile were burning. The defendant testified that he could not see beyond fifty or seventy-five feet ahead on the highway, and that he first saw the plaintiff's horse at i distance of about twenty feet. The evidence as to the speed of the automobile varied from twenty-five miles to thirty miles per hour.

The judge who wrote the majority opinion in the Court of Appeals summarized the situation as follows:

"In his petition the plaintiff assigned a number of acts of negligence which he alleged were wilful on the part of the defendant. There is no proof that the defendant was driving his automobile at a rate of speed in excess of forty-five miles per hour as alleged in the petition, but there is evidence tending to show negligence on the part of the defendant in his failure while operating his car on the highway, to have headlights in operation in conformity with the requirements of the statute, his failure to stop his car when he observed the plaintiff riding toward him on horseback on a lunging...