Helleren v. Dixon, 31694.

• Citation: 152 Ohio St. 40,86 N.E.2d 777
• Decision Date: 22 June 1949
• Docket Number: No. 31694.,31694.
• Parties: HELLEREN v. DIXON.
• Court: Ohio Supreme Court

152 Ohio St. 40
86 N.E.2d 777

HELLEREN
v.
DIXON.

No. 31694.

Supreme Court of Ohio.

June 22, 1949.

[86 N.E.2d 777]

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

[86 N.E.2d 778]

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.

Action by one Helleren, administratrix of the estate of John Helleren, deceased, against one Dixon to recover for death of deceased. From a judgment for the plaintiff, the defendant appealed to the Court of Appeals. After the appeal, defendant died and the administratrix of his estate was substitute as defendant. From a judgment of the Court of Appeals affirming a judgment of a common pleas court, the substituted defendant appeals.-[Editorial Statement.]

Judgment of Court of Appeals reversed and final judgment rendered for substituted defendant.

ZIMMERMAN, J., and WEYGANDT, C. J., dissenting.

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...