Mroz v. Vasold, 189

• Decision Date: 15 March 1962
• Docket Number: No. 189,189
• Citation: 178 A.2d 403,228 Md. 81
• Parties: Richard P. MROZ, etc., et al. v. Lawrence G. VASOLD, Jr.
• Court: Maryland Court of Appeals

Page 81

228 Md. 81

178 A.2d 403

Richard P. MROZ, etc., et al. v. Lawrence G. VASOLD, Jr.

No. 189.

Court of Appeals of Maryland.

March 15, 1962.

Joel H. Pachino, Baltimore (Irvin S. Friedman, Baltimore, and George D. Edwards, Dundalk, on the brief), for appellants.

Michael P. Crocker, Baltimore, and R. Taylor McLean, Towson (Kenneth C. Proctor, Towson, and Piper & Marbury, Baltimore, on the brief), for appellee.

Before HENDERSON, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

PRESCOTT, Judge.

When the trial judge in the Circuit Court for Baltimore County granted the appellee's motion for a judgment n. o. v. after a jury had rendered a verdict in favor of the appellants, they appealed. The only question involved is whether appellants offered sufficient evidence, in view of the Ohio 'guest-passenger statute,' to require a submission of their case to the jury.

The appellee and the appellant, Richard P. Mroz (Mroz), neighbors in Baltimore County and college schoolmates, were visiting in the State of Ohio. In the middle of a clear July day in 1959, they set out, by automobile, for Cleveland to see a baseball game, accompanied by a young lady, Marjorie Robinson. The appellee was driving; the young lady was to his right and Mroz to her right; all on the front seat. They approached Ohio Route 241, a north-south through street, from the east on Canal Fulton Road, and proceeded into the intersection of said streets, where the automobile in which they were riding was struck by a south bound motor vehicle on the through street. It is conceded that Mroz was a nonpaying guest; that a red blinking light faced appellee as he approached the intersection; and that stop sign was located on the north side of Canal Fulton Road, about 10 feet from Route 241. Pictures offered as exhibits show that an operator on Canal Fulton Road does not have a full view to his right on Route 241 until he is very close to the intersection, but it cannot be said that the pictures clearly show that the view to the right is completely obstructed.

The three occupants of the car were the only witnesses at the trial below--Mroz and the appellee being called by the appellants; Miss Robinson by the appellee. Summarized and stated most favorably for the appellants, their testimony was to the following effect. Mroz stated that at some time during the ride he believed he said something to the appellee about his speeding; appellee 'seemed' to be in a hurry; when they approached Route 241, Mroz drew appellee's attention to the Castaway House, which was located a short distance to their left facing Route 241; when they reached the stop sign, the appellee 'slowed down,' and 'he came to it [the intersection] very slow, and then he put it in second gear and proceeded across' (in a statement made shortly after the accident, Mroz said he did not remember whether they slowed down or not, and appellants argue this statement should aid them in taking their case to the jury); he saw appellee look to his left, but he didn't know whether appellee looked to the right or not; when they were proceeding across Route 241, he heard a screeching which drew his attention and he saw, for the first time, a car some 25 to 30 feet away, approaching from his right at a high rate of speed; and very shortly thereafter the vehicles collided. He also stated the appellee told him, shortly after the accident, that appellee 'didn't even see the car coming.'

The appellee, called by the appellants, was unable to spread much light on what occurred just before the collision, in which he received a rather severe 'bump' on his head. When he was 50 to 100 feet from the intersection, traveling at about 35 to 40 miles per hour he remembered that he said something to Mroz about the Castaway House, and he could not recall anything that transpired thereafter until he was walking around his car after the accident. He didn't remember whether he saw the stop sign, but thought he saw the blinking light; he believed he slowed down before reaching the intersection, but did not remember whether he did or not; and he saw the intersection, but did not see the other vehicle until after the impact. The testimony of Miss Robinson afforded no additional impetus to appellants' case.

The appellants argue that the above evidence, viewed in a light most favorable to them, and the legitimate inferences duducible therefrom entitled them to have the jury pass upon their case, in spite of the Ohio guest statute. This statute (General Code, § 6308-6) is set forth in Page's Ohio Rev.Code Ann., Title 45, § 4515.02, and, in pertinent part, states:

'The * * * person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to * * * a [non-paying] guest * * * resulting from the operation [of said motor vehicle], * * * unless such injuries * * * are caused by the wilful or wanton misconduct of such operator * * *.'

See also General Code, § 6296-10 for minor automobile operators responsibility statute.

It is obvious that the critical words in the above statute are 'wilful or wanton misconduct,' with 'wilful or wanton' stated disjunctively. Although the case below was tried upon the issue of whether the appellee had been guilty of 'wilful or wanton misconduct,' the appellants, in their brief and oral argument, abandon all claim of 'wanton misconduct' on the part of the appellee, but assert that the evidence brings his actions within the scope of 'wilful misconduct,' as defined by the Supreme Court of Ohio. It may well be, that in adopting this course, appellants assumed a heavier burden than if they had let the issue of 'wilful or wanton misconduct' stand. See Bailey v. Huff, Ohio Com.Pl., 152 N.E.2d 162 (1956), wherein the Court stated that the appellant's brief did not contend that the defendant below had been guilty of 'wilful misconduct,' but claimed that reasonable minds might, at least, differ on the question of whether defendant was guilty of 'wanton misconduct.' And in the late case of Billings v. Carroll, 171 Ohio St. 167, 168 N.E.2d 310 (Ohio 1960), on an issue of 'wanton or wilful misconduct' under the statute, the Court set out, in detail, the definitions of both 'wanton misconduct' and 'wilful misconduct,' then proceeded, without further discussion of 'wilful misconduct,' to hold that the evidence presented a jury question as to 'wanton misconduct,' to reverse the judgment below, and to remand the cause for further proceedings. See also Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122, where the Court stated: "wilful misconduct' imports a more positive mental condition prompting an act than does the term 'wanton misconduct.' 'Wilful misconduct' implies an intentional deviation from a clear duty or from a definite rule of conduct * * *.' But be that as it may, we shall analyze and consider the evidence to see whether the issue of appellee's 'wilful misconduct' should have been submitted to the jury.

It will not be necessary for us to formulate an original definition of wilful misconduct as used in the Ohio statute, for the Supreme Court of that State has done so. In a very pleasingly styled opinion in Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, Judge Stephenson pointed out that, at least, in Ohio 'there is no such thing as wilful negligence, and there is no such thing as wanton negligence,' stating that an action based upon wilful or wanton misconduct is apart from one based on negligent conduct, the difference being one of kind, not merely of degree. He further stated that negligence is not founded upon either wilfulness or wantonness, and misconduct which is merely negligent is never wilful or wanton. In Billings v. Carroll, supra, the Court repeated the oftquoted (in Ohio) definition of 'wilful misconduct' under the guest statute. In relevant part, it follows:

"'Wilful misconduct' * * * is either the doing of an act with specific intent to injure his passenger or with full knowledge of existing conditions, the intentional execution of a wrongful course of conduct which he knows should not be carried out or the intentional failure to do something which he knows should be done in connection with his operation of the automobile, under circumstances tending to disclose that the...