Mackey v. Robertson

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtDREW, Justice.
Citation195 A. 870
Decision Date03 January 1938
PartiesMACKEY v. ROBERTSON.
195 A. 870

MACKEY
v.
ROBERTSON.

Supreme Court of Pennsylvania.

Jan. 3, 1938.


195 A. 870

Appeal No. 364, January term, 1937, from judgment of Court of Common Pleas, Crawford County; O. Clare Kent, President Judge.

Trespass for personal injuries by Anna C. Mackey against Belle G. Robertson. Verdict and judgment for plaintiff for $44,416, from which the trial court required a remittitur to reduce the verdict to $25,623.65, and the defendant appeals.

Judgment reversed, and judgment entered for defendant.

Argued before SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

O. J. Graham and Gunnison, Fish, Gifford & Chapin, all of Erie, for appellant. Albert L. Thomas, of Meadville, W. E. Burdick, of Bradford, and Eugene Mackey, of Franklin, for appellee.

DREW, Justice.

Returning from the World's Fair in Chicago in 1934, defendant was accompanied in her car by plaintiff as a guest. While driving through Ohio it began to rain; defendant continued notwithstanding, reducing her speed to about 40 or 45 miles an hour. Under these circumstances she skidded on the wet surface of the concrete highway and collided with the headwall of a bridge. From this accident arise the injuries for which plaintiff has brought this action of trespass. Claiming the case is ruled by the law of Ohio where a nonpaying guest must prove willful or wanton misconduct to recover from his host, and that such extreme want of care was not made out in this case, defendant, following a verdict for plaintiff, moved for judgment n. o. v. She moved also for a new trial on the ground that the verdict was excessive. The court below denied the motion for a new trial upon plaintiff's acceptance of a reduced verdict, and, of course, overruled the motion for judgment n. o. v. This appeal by defendant followed.

The case is undoubtedly ruled by the law of Ohio, the place of the alleged tort. Mike v. Lian, 322 Pa. 353, 185 A. 775; Singer v. Messina, 312 Pa. 129, 167 A. 583, 89 A.L.R. 1271; Dickinson v. Jones, 309 Pa. 256, 163 A. 516, 85 A.L.R. 1226. It is admitted plaintiff was a guest and was being transported without payment. To recover she must show a degree of fault tantamount to "wilful or wanton misconduct." Throckmorton's Annotated Code of Ohio 1934, § 6308-6. For the construction of this phrase of Ohio statute, we look to the Ohio cases. "'Willful misconduct' * * * implies the element of intent or purpose to injure. 'Wanton negligence,' on the other hand, implies the failure to exercise any care toward those to whom a duty of care is owing." Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, 531, 191 N.E. 745, 750; see Denzer v. Terpstra, 129 Ohio St. 1, 193 N.E. 647. In the case of Cousins v. Booksbaum, 51

Ohio App. 150, at page 153, 200 N.E. 133, 134, petition on appeal denied by the Ohio Supreme Court 130 Ohio St. 336, 199 N.E. 217...

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17 practice notes
  • Foley v. Pittsburgh-des Moines Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 17, 1949
    ...302 Pa. 279, 153 A. 346; Dickinson, Administratrix v. Jones, 309 Pa. 256, 163 A. 516, 85 A.L.R. 1226; Mackey v. Robertson, 328 Pa. 504, 195 A. 870; Sudol v. Gorga, 346 Pa. 463, 31 A.2d 119. It is that law which prescribes the standard of care that the person charged with the commission of t......
  • Foley v. Pittsburgh-Des Moines Co., 1123
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 26, 1949
    ...v. Heller , 302 Pa. 279, 153 A. 346; Dickinson, Administratrix, v. Jones, 309 Pa. 256, 163 A. 516; Mackey v. Robertson , 328 Pa. 504, 195 A. 870; Sudol v. Gorga , 346 Pa. 463, 31 A.2d 119. It is that law which prescribes the standard of care that the person charged with the commission of th......
  • Griffith v. United Air Lines, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 14, 1964
    ...v. Keller, 365 Pa. 258, 74 A.2d 131; Randall v. Stager, [416 Pa. 27] 355 Pa. 352, 354, 49 A.2d 689; Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870; Mike v. Lian, 322 Pa. 353, 185 A. 775 (1936); Dickinson v. Jones, 309 Pa. 256, 163 A. 516, 85 A.L.R. 1226 (1932); Barclay v. Thompson, 2 Pen......
  • O'hagan v. Byron.
    • United States
    • Superior Court of Pennsylvania
    • September 28, 1943
    ...within the terms of this statute; and for a construction of the statute we look to the Ohio cases. Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870. Protection of the statute is not given to the owner, operator, or person responsible for the operation of a motor vehicle from liability for ......
  • Request a trial to view additional results
17 cases
  • Foley v. Pittsburgh-des Moines Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 17, 1949
    ...302 Pa. 279, 153 A. 346; Dickinson, Administratrix v. Jones, 309 Pa. 256, 163 A. 516, 85 A.L.R. 1226; Mackey v. Robertson, 328 Pa. 504, 195 A. 870; Sudol v. Gorga, 346 Pa. 463, 31 A.2d 119. It is that law which prescribes the standard of care that the person charged with the commission of t......
  • Foley v. Pittsburgh-Des Moines Co., 1123
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 26, 1949
    ...v. Heller , 302 Pa. 279, 153 A. 346; Dickinson, Administratrix, v. Jones, 309 Pa. 256, 163 A. 516; Mackey v. Robertson , 328 Pa. 504, 195 A. 870; Sudol v. Gorga , 346 Pa. 463, 31 A.2d 119. It is that law which prescribes the standard of care that the person charged with the commission of th......
  • Griffith v. United Air Lines, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 14, 1964
    ...v. Keller, 365 Pa. 258, 74 A.2d 131; Randall v. Stager, [416 Pa. 27] 355 Pa. 352, 354, 49 A.2d 689; Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870; Mike v. Lian, 322 Pa. 353, 185 A. 775 (1936); Dickinson v. Jones, 309 Pa. 256, 163 A. 516, 85 A.L.R. 1226 (1932); Barclay v. Thompson, 2 Pen......
  • O'hagan v. Byron.
    • United States
    • Superior Court of Pennsylvania
    • September 28, 1943
    ...within the terms of this statute; and for a construction of the statute we look to the Ohio cases. Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870. Protection of the statute is not given to the owner, operator, or person responsible for the operation of a motor vehicle from liability for ......
  • Request a trial to view additional results

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