Jones v. Jones

• Decision Date: 14 February 1950
• Citation: 312 Ky. 240
• Parties: Jones v. Jones.
• Court: United States State Supreme Court — District of Kentucky

312 Ky. 240

Jones v. Jones.

Court of Appeals of Kentucky.

February 14, 1950.

Action by J.D. Jones against Madeline Jones for injuries sustained in an automobile accident in Ohio.

The Madison Circuit Court, W.J. Baxter, J., directed a verdict for defendant, and plaintiff appealed.

The Court of Appeals, Helm, J., held that the Ohio guest statute applied, that plaintiff was not a passenger but a guest in defendant's automobile, and that evidence to establish that defendant was guilty of wanton misconduct was insufficient for jury.

Judgment affirmed.

1. Automobiles. — Under Ohio guest statute the sharing of cost of gasoline and oil consumed on a trip taken for mutual pleasure or social purposes does not transform one into a passenger who, without such sharing, would be a guest, and is not "payment" for transportation within meaning of guest statute. Gen. Code Ohio, sec. 6308-6.

2. Automobiles. — Under Ohio guest statute where plaintiff accompanied his brother and sister-in-law on automobile trip, and there was no agreement regarding expenses on trip but plaintiff paid for some gasoline, plaintiff was not a "passenger" but a "guest" in defendant's automobile, and was not entitled to recover for injuries sustained in accident which were not caused by wilful or wanton misconduct of defendant. Gen. Code Ohio, sec. 6308-6.

3. Automobiles. — Under Ohio guest statute providing that a person responsible for automobile is not liable to guest except for wanton and wilful misconduct in operation of automobile, "wanton misconduct" is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances that party doing act or failing to act must be conscious from his knowledge of such surrounding circumstances, that his conduct will in all common probability result in injury. Gen. Code Ohio, sec. 6308-6.

4. Automobiles. — Under Ohio guest statute, where party responsible for operation of automobile is not liable to guest except for wanton misconduct, "wantonness" can not be predicated on speed alone, but when concomitant facts show an unusually dangerous situation and a consciousness on driver's part that his conduct will in common probability result in injury to another of whose dangerous position he is aware, and he drives on without any care, and without slackening his speed, in utter heedlessness of other person's jeopardy, speed plus such unusually dangerous surroundings and knowing disregard of another's safety may amount to "wantonness." Gen. Code Ohio, sec. 6308-6.

5. Automobiles. — In action for injuries sustained by guest in an automobile accident occurring in Ohio when automobile skidded and overturned, evidence of excessive speed was insufficient to show "willful and wanton misconduct" of driver within Ohio guest statute, so as to take case to the jury. Gen. Code Ohio, sec. 6308-6.

6. Automobiles. — Where automobile accident occurred in Ohio, and suit was filed in Kentucky, Ohio guest statute applied. Gen. Code Ohio sec. 6308-6.

Shumate & Shumate for appellant.

Stoll, Keenon & Park and George T. Ross for appellee.

Before W.J. Baxter, Judge.

JUDGE HELM.

Affirming.

Appellant, J.D. Jones, sought damages from Made-line Jones because of injuries sustained in an automobile accident in Ohio. The trial court directed a verdict for appellee. Appellant appeals.

Appellee, Madeline Jones, is the wife of Chester Jones; Chester is a brother of appellant. Appellant and his daughter, Mrs. Lucille Cobb, lived near Richmond. Appellee and her husband, Chester, lived in Richmond. A day or two prior to December 12, 1947, appellant and his brother, Chester, received word that their aunt, Candice Adams, who lived at Amelia, Ohio, had died. Appellee invited appellant and his daughter to accompany her and her husband in her automobile from Richmond to Amelia to attend the funeral of their aunt. Appellant and his daughter accepted the invitation, and on the morning of December 12, 1947, the four of them left for Ohio, going by way of Winchester and Maysville. Before leaving, Chester said there was no need to take both cars. Appellant and Chester agreed that they would go in appellee's car. Chester, the husband and agent of appellee, drove her car. There was no agreement or understanding "regarding the expenses on this trip." At Winchester they stopped and got some gas. Appellant says, "The tank was on my side of the car. I went out and gave the attendant a $5 bill and he gave me $2.50 back."

Appellant says, "The sun was shining. There was some snow around. Seen ice in Ohio several times." It was "pretty chilly." He did not say anything to his brother about the ice. Asked how fast his brother was driving, he replied, "I wouldn't say." Asked if he was driving at an ordinary rate of speed, he answered, "I wasn't paying any attention." Then asked if in his deposition he had stated that his brother was driving at an ordinary rate of speed, he answered, "Yes, sir." He then said there was nothing out of the ordinary about his brother's driving that attracted his attention. A few miles beyond Georgetown, Ohio, as they were driving along, he says, "Don't know what happened. * * * Something happened to the car. * * * I was hit in the head and knocked unconscious." When he "woke up" he was in a hospital in Cincinnati. He admits that in a statement made later he said, "The black top road was icy and Chester, who is a very good driver, was driving carefully because of the ice at a speed of about 35 to 40 miles per hour when all of a sudden the car started to skid and left the road on the right side and turned over. * * * In my opinion this accident was simply one where a car skidded out of control and Chester Jones was no way responsible for it." Asked if he made that statement, he said, "Yes sir. I wouldn't blame the accident on nobody."

Mrs. Cobb, daughter of appellant, was in the car on the trip to Ohio. She says the weather was "very pretty but cold." She did not notice any ice on the road until they got into Ohio; saw plenty of it in Georgetown, and then "just spots of it on the road." At that time she was riding on the front seat with Chester. At the time the car swerved she did not notice ice on the highway until the car was on it. She has ridden in automobiles for about 30 years. In her opinion Chester was driving about 50 miles an hour.

Appellee was called by appellant to testify as if under cross-examination. The car belonged to her. Chester, as her husband and agent, was driving her car. She was riding on the back seat with appellant at the time of the accident. She had noticed snow and ice on the road off and on as they got into Ohio. Asked how fast they were going, she said, "We had been driving about 60 miles an hour." Asked as to how fast Chester was driving at the point of accident, she said, "He hadn't checked up very much." The car skidded several times and went off the road and turned over about four or five miles beyond Georgetown. She did not say anything to her husband about his driving. No one complained about the ice or how her husband was driving at any time. Asked by her attorney, "You don't mean to tell the jury how fast your husband was driving when the accident occurred?" she answered, "No,...