Helleren v. Dixon

• Decision Date: 22 June 1949
• Docket Number: 31694.
• Parties: HELLEREN v. DIXON.
• Court: Ohio Supreme Court

86 N.E.2d 777

152 Ohio St. 40

HELLEREN v. DIXON.

No. 31694.

Supreme Court of Ohio

June 22, 1949

Syllabus by the Court.

1. Within the meaning of Section 6308-6, General Code, 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. Universal Concrete Pipe Co v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R 646, approved and followed.

2. In an action against the operator of an automobile for injuries to or death of a nonpaying guest, where there is no substantial evidence tending to prove wilful or wanton misconduct of the defendant, the trial court should grant such defendant's notion for a directed verdict.

Appeal from the Court of Appeals for Belmont County.

Plaintiff sought to recover damages from the defendant for allegedly wrongfully causing the death of John Helleren, herein referred to as decedent.

Decedent died as the result of injuries received on April 15, 1946, while riding as a guest in defendant's automobile.

The defendant, claiming that no evidence had been offered proving or tending to prove wilful or wanton misconduct, moved for a directed verdict at the close of the plaintiff's evidence and renewed this motion at the conclusion of all the evidence. The motion was overruled in both instances.

The jury returned a $10,000 verdict. Motions for new trial and for judgment notwithstanding the verdict were filed by the defendant. The trial court overruled the motions and directed a remittitur of $3,000 which was accepted by the plaintiff and judgment for the reduced amount was rendered against the defendant.

The defendant appealed to the Court of Appeals. After the appeal, the defendant died and his administratrix was substituted for him as defendant appellant (the term, defendant, hereinafter used refers to the original defendant). The Court of Appeals affirmed the judgment of the Common Pleas Court.

The case is before this court on appeal, a motion to certify having been allowed.

Wayne D. King, Bridgeport, and Kinder & Kinder, Martins Ferry, for appellant.

Matz & Cinque, Bellaire, for appellee.

TAFT Judge.

The first question to be considered is whether the trial court erred in refusing to grant the motion of defendant for a directed verdict.

It is conceded that defendant's liability is governed by Section 6308-6, General Code. That section reads:

'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 while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'

In determining whether there was any substantial evidence tending to prove 'wilful or wanton misconduct' of the defendant, it is necessary to outline in some detail the allegations of the petition and the evidence appearing in the record.

On April 15, 1946, the day of the collision, defendant took decedent with him on an automobile trip from Belmont, where they lived, to Bellaire. On the way, they stopped in Glencoe for gasoline and each had a bottle of beer. At Bellaire, Before starting their return trip, they each had a sandwich and three glasses of beer. There was no claim made in the petition or at the trial that defendant was intoxicated.

According to the allegations of the petition, at about 4:15 p. m., defendant was driving his 1934 Chevrolet in a westerly direction along Belmont county road No.

126 about five miles east of Belmont when the vehicle collided with a concrete culvert headwall. It is further alleged that the traveled portion of the highway was improved with a concrete surface 20 feet in width with a berm on each side approximately six feet wide; that the concrete culvert headwall was on the outside edge of the north berm of the road and was approximately one foot wide and five feet long and buried in the ground approximately three feet; and that 'defendant was driving and operating his said automobile at a high and unlawful rate of speed, at more than 50 miles per hour, and at a rate of speed greater than was reasonable or proper.'

In the portion of the petition in which plaintiff attempts to allege wilful or wanton misconduct, it is stated:

'* * * that it was raining * * * and the pavement was wet and slippery, that the windshield of defendant's automobile was covered with water, which facts were known to the defendant but notwithstanding, defendant continued to operate and drive said automobile at said high and dangerous rate of speed although he was unable to see the road ahead of him and wilfully and wantonly drove said automobile on the north side of the traveled portion thereof a distance of approximately 150 feet and continued on to the berm for a distance of 150 feet more and into and against said culvert with such force as to tear it from its foundation and moved it approximately one foot.

'That defendant knew of the existence of said culvert headwall, that he was unable to see out of his automobile but notwithstanding, wilfully and wantonly attempted to drive said automobile on the berm of said highway at said high and dangerous rate of speed and his acts in so doing were known to him to be highly dangerous to plaintiff's decedent and would in all common probabilities result in injury or death to plaintiff's decedent and without regard to and with indifference to his safety.'

Since defendant was driving west, the north portion of the highway was the right hand side for him. The above-quoted portion of the petition, with reference to defendant's driving although 'unable to see the road ahead of him,' is susceptible of a construction that such blind driving was only for approximately 150 feet on the traveled or concrete portion of the road and 150 feet on the berm before collision with the culvert. There was no evidence tending to prove that such blind driving, immediately preceding the collision, was for any greater distance.

There was a gradual upgrade in the highway as it approached the culvert from the east.

The only direct evidence as to defendant's speed just before the accident was his testimony that he was going 35 or 40 miles per hour. While he did testify his car would go faster than that and admitted that he was 'giving the car all the gas she would take,' it should be remembered that he was driving a 12-year-old Chevrolet up a grade. Notwithstanding the damage to car and culvert from the collision, was believe therefore, that it can hardly be argued seriously that there was substantial evidence of a speed in excess of 35 to 40 miles per hour.

There was no direct evidence that defendant knew of the existence of this culvert. The facts, that defendant had driven over the same road on the way to Bellaire and that he lived within a few miles of the location of the culvert and thus might have been over the road on other occasions, would hardly justify the jury in inferring that he had any knowledge about the danger from such culvert. There was no evidence as to other culverts on this road or as to their existence on roads in that vicinity.

There was no evidence that defendant knew his car had left the paved portion of the road before he hit the culvert. He testified positively that he did not know. While there was evidence that the berm was muddy and the tracks made thereon were three inches deep, the petition alleges that the pavement was wet and slippery and that defendant was unable to see the road during the period after his car got off onto the berm. Therefore, we do not believe that, in view of his positive testimony that he did not know, it can fairly be argued that defendant knew that he was off the paved portion of the road before his car hit the culvert.

When asked why he continued to drive 300 feet when he could not see because of the rain on his windshield, defendant stated that 'I just took a chance on nothing happening.'

The evidence as interpreted most favorabily to plaintiff discloses that, at and immediately preceding the collision with the concrete culvert:

(1) Defendant was driving about 35 to 40 miles per hour up a grade which was as fast as he could go in his 12-year-old Chevrolet.

(2) Defendant was driving on the right hand side of a 20-foot concrete road which had a six-foot berm on each side.

(3) For a distance of 300 feet defendant could not see the road because of the rain and because his windshield wiper...