McCoy v. Faulkenberg

• Decision Date: 28 October 1935
• Parties: McCOY v. FAULKENBERG.
• Court: Ohio Court of Appeals

4 N.E.2d 281

53 Ohio App. 98

McCOY v. FAULKENBERG.

Court of Appeals of Ohio, First District, Hamilton.

October 28, 1935

Leo J Brumleve, Jr., and Benjamin P. Pink, both of Cincinnati, for plaintiff in error.

August A. Rendigs, Jr., and Wm. H. Fry, both of Cincinnati, for defendant in error.

MATTHEWS, Judge.

This proceeding in error to the court of common pleas of Hamilton county presents the question of the proper construction of section 6308-6, General Code, whereby it was enacted that the person responsible for the operation of a motor vehicle should not be liable for the injury or death of a guest resulting from the operation of the motor vehicle ‘ unless such injuries or death are caused by the wilful or wanton misconduct of such * * * person responsible for the operation of said motor vehicle.’

The guest, Gertrude McCoy, while riding in the automobile received injuries resulting from the automobile colliding with the curb and a pole. The administrator of her estate filed this action against the operator of the automobile. The defendant admitted that the decedent was a passenger, that the collision took place and that she received injuries from which she died, and then denied all the allegations alleging fault on his part.

The trial court overruled the defendant's motion for an instructed verdict at the close of the plaintiff's evidence, and after all the evidence had been introducted. The case was submitted to the jury under instruction by the court, and the jury returned a verdict for the defendant. The plaintiff's motion for a new trial was overruled and judgment entered on the verdict.

The plaintiff was the husband of the decedent and was also a guest in the automobile, sitting beside his wife, at the time of the accident. His testimony is the most favorable to the plaintiff on the subject of the conduct of the defendant and the manner in which he operated the automobile. We therefore, deem it sufficient for the purpose of disposing of this proceeding to quote from his testimony on this subject. His testimony was:

‘ A. We all sat around in a circle, I played the ukelele and we all sang, drank a gin highball, just spent a nice evening there.

‘ Q. How many gin highballs did you drink? A. I had two.

‘ Q. Do you remember how many Mr. Faulkenberg had? A. No.

‘ Q. Did the ladies drink? A. Yes. * * *

‘ Q. I want you to state to the members of the jury again whether, in your opinion, Mr. Faulkenberg was under the influence of intoxicating liquor when you started to drive home with him? A. To a certain extent.

‘ Q. To a certain extent? A. Yes.

‘ Q. And that was known to Mrs. McCoy? A. Yes. * * *

‘ Q. Now, Mr. McCoy, I want you to tell the court and jury just what occurred there at this little restaurant and between all of you? What did you do? A. We danced and had a couple of glasses of beer and I used to do a little entertaining and I got out with the ukelele and sang a song in the beer garden. We went back to our table, finished our beer and left. We were only there about an hour.

‘ Q. Then about what time would you say you left this restaurant and beer garden? A. About twelve o'clock.

‘ Q. Now, while you were at the restaurant and beer garden did Mrs. Faulkenberg or Mr. Faulkenberg have any beer? A. Yes, we all did.’

While it was alleged in the amended petition that the defendant was intoxicated, the quoted evidence was as strong a statement as was made by any witness, and as a result the claim was abandoned in this court, the plaintiff in error stating in his brief that ‘ There was no such claim made during the trial because the evidence failed to support such allegation.’ We find no such clear waiver in the trial court.

We continue with Mr. McCoy's testimony:

‘ Q. Now, then, after you got to the point a square or two, as you say, beyond Edwards Road, and he was going thirty-five to forty, what course was he pursuing? Was he going straight ahead? A. No, he was cutting in and out and around all the machines.

‘ Q. Now, Mr. McCoy, what did anyone in that car do or say when this course of conduct started on behalf of Emmett Faulkenberg? A. My wife was the first one to ask him not to drive so fast.

‘ Q. What did she say? A. She says ‘ Emmett, don't drive so fast; we are in no particular hurry.’ We were going nowhere but home.

‘ Q. What he did say in response to that, if anything? A. He says ‘ Oh, I brought you out here, I will get you home; don't worry about that.’

‘ Q. Mr. McCoy, I want you to tell the court and jury after that remark how he continued to drive? A. He continued in the same way only faster. I would say picked up another ten miles an hour, approximately forty-five, maybe fifty, and still continued to cut around the machines.

‘ Q. What, if anything, was said to him by anyone in that car when that occurred? A. Yes, my wife told him again if he wouldn't quit driving so fast and reckless to let us out at the next loading platform and we would take the street car.

‘ Q. Did he say anything in response to that? A. No, he never said anything but his wife told him, ‘ Now, Emmett, don't be smart, there is no need driving so fast and being in such a hurry.’

‘ Q. Then what was the next thing occurred, if anything, as you remember? A. The next thing occurred was the crash and I was conscious long enough just before the crash to know the machine was turning, then I don't remember anything.’

The defendant and his wife, who sat beside him on the front seat, denied that the automobile was operated in the manner stated by the plaintiff and denied that any such conversations as stated by plaintiff took place. The defendant's explanation of the accident was as follows:

‘ Q. I want you to tell the folks just what happened when you got to Vista Avenue or a little beyond? A. When I came to Vista and I started to make the turn, there is a turn right there, and just as I was turning the corner I was suddenly blinded by lights. I swerved over to the curb, my wheels hit the curb, I lost control of the automobile, my rear wheels swung around; that is all I know.

‘ Q. You were knocked unconscious? A. Yes, sir. * * *

‘ Q. When was it you first saw this other automobile that you claim flashed lights in your eyes? A. When I was coming down Madison Road going west, just about the time I hit the curb this other car was coming toward me. Just where he was or how far away he was I couldn't say. His lights were very bright. I swung over to get out from the glare of the lights and I hit the curb.

‘ Q. In other words, what you want to tell us is you swung out to get out of the glare of the lights? A. They were there all of a sudden. It is only natural you would swing out of the way, Mr. Pink.’

The trial court, after reading section 6308-6, General Code, to the jury and defining ‘ wilful’ and ‘ wanton’ misconduct, then instructed the jury on the subject of the decedent's conduct as follows: ‘ There is some evidence in this case that the decedent, Gertrude McCoy, knew that the defendant was under the influence of liquor to some extent when she got into his machine and continued to ride with him until the collision. On this point the court charges you if you should find by the greater weight of the evidence that the defendant was guilty of wilful and wanton misconduct and at the same time find that the decedent, Gertrude McCoy, was negligent in getting into the automobile and riding with the defendant, if you should find she was in fact negligent that negligence in and of itself should not defeat a recovery by plaintiff against the defendant unless you further find that such negligence on the part of plaintiff's decedent amounted to wilful and wanton misconduct. On this issue, that is, whether plaintiff's decedent was also guilty of wilful and wanton misconduct under the circumstances the defendant has the burden of proof by the greater weight of the evidence unless plaintiff's own negligence raises an inference or presumption that decedent was guilty of wilful or wanton misconduct, in which event the burden is upon the plaintiff to introduce evidence from which an inference or presumption of equal strength arises that she was not guilty of wilful or wanton misconduct under the circumstances.’

It is claimed that there was no evidence of intoxication of the defendant and no evidence of contributory misconduct of decedent and that, therefore, the court erred in submitting this issue of contributory misconduct to the jury.

The record also raises the issue of whether the decedent's death was caused by any willful or wanton misconduct on the part of the defendant.

So far as we know, there is no case in Ohio construing section 6308-6, General Code. However, somewhat similar statutes in other states have been construed by the courts of those states and furnish a guide to a correct decision of this case.

The Connecticut statute, section 1628, General Statutes of Conn. (Revision of 1930), exempts the operator from liability to the guest ‘ unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.’ Construing this statute, the court in Bordonaro v. Senk, 109 Conn. 428, 147 A. 136, 137, said:

‘ Act or conduct in reckless disregard of the rights of others is improper or wrongful conduct, and constitutes wanton misconduct, evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another. We define these terms in Menzie v. Kalmonowitz, 107 Conn. 197, at page 199, 139 A. 698, 699:‘ Wanton misconduct is more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just

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