Russell v. Elkins

• Decision Date: 21 April 1961
• Citation: 115 Ohio App. 341,177 N.E.2d 355
• Parties: , 16 O.O.2d 472 Charles RUSSELL, Sr., Administrator of the Estate of Charles Russell, Jr., Deceased, 699 1/2 West Center Street, Marion, Ohio, Plaintiff-Appellee, v. Mary ELKINS, Administratrix of the Estate of Garland E. Elkins, Deceased, 674 Sugar Street, Marion, Ohio, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 341

115 Ohio App. 341

177 N.E.2d 355, 16 O.O.2d 472

Charles RUSSELL, Sr., Administrator of the Estate of Charles Russell, Jr., Deceased, 699 1/2 West Center Street, Marion, Ohio, Plaintiff-Appellee, v. Mary ELKINS, Administratrix of the Estate of Garland E. Elkins, Deceased, 674 Sugar Street, Marion, Ohio, Defendant-Appellant.

Court of Appeals of Ohio, Third District, Marion County.

April 21, 1961.

Guthery, Harmon & Conkle, Howard F. Guthery, Louis B. Conkle, Marion, for defendant-appellant.

G. A. Piacentino, Eugene A. Yazel, Marion, for plaintiff-appellee.

MIDDLETON, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court entered for the plaintiff pursuant to the verdict of a jury. Plaintiff's action is for damages for causing the wrongful death of plaintiff's decedent which resulted from a head-on collision between an automobile in which the plaintiff's decedent was riding as a guest and one driven by the defendant's decedent. Upon trial the jury returned a verdict for the plaintiff. A motion for new trial and judgment notwithstanding the verdict were filed by the defendant, which were both overruled. The appellant sets forth as his Assignments of Errors the following, to-wit:

'1. The trial Court erred in refusing to direct the verdict at the close of all of the evidence.

'2. The trial Court erred in refusing to grant a judgment notwithstanding the verdict.

'3. The trial Court erred in not granting a judgment for a new trial.

'4. The trial Court erred in charging the jury on Sections 4507.37; 4511.20; 4511.21; 4511.25; 4511.26 of the Revised Code of Ohio.'

Plaintiff in his Amended Petition averred that the 'defendant's decedent caused his said automobile to swerve and weave back and forth across said Kenton Avenue at a speed of 55 miles per hour in such a manner as to have an absolute indifference to the consequences of the manner in which he was driving. That immediately and thereafter the passengers in defendant decedent's automobile admonished the defendant's decedent by asking defendant's decedent to slow down, not to swerve and weave, and to be more careful. But defendant's decedent then and thereafter paid no attention to his passengers' remarks but misconducted himself in a wanton manner by causing his said automobile to swerve and weave back and forth across said Kenton Avenue at a speed of 55 miles per hour when he well knew that to so operate his said automobile would in all probability cause injury to plaintiff's decedent.'

The record discloses that all occupants of both cars involved in the collision were killed except Evelin E. Burke, who testified as a witness. With the exception of a Mr. Needham, who testified as a witness, there were no eye witnesses to the collision. Mrs. Burke testifide that prior to the collision that she in the company of the defendant's decedent and one Junior Russell visited the night club, Club Admiral, and that she did not notice anything wrong with the defendant's decedent at the club and did not notice anything unusual in the manner of defendant's decedent's driving after leaving the club until they got on to David Street. She testified as follows:

'Q. Was there anything unusual about the operation of the vehicle on the way home, or on the way from the Club Admiral? A. No, not to me there wasn't until we got on David Street.

'Q. What happened, if anything, on David Street? A. When we got on David Street, he kept getting over on the left side of the road and I thought for a while the windshield was all clouded up, I thought that that was what was wrong, he couldn't see so good, so I wiped it off several times for him. It seemed to help. As he got closer to West Center Street, he got worse and he speeded up. He started going faster as he went around the corner on West Center and David, and me and Junior both asked him to stop and let us out of the car. He wouldn't. He just kept on going.

'Q. Do you remember anything about his speed as you crossed the tracks out there? Did he increase his speed if you recall? A. That is what he did.

'Q. Mrs. Burke, I presume you have ridden in a car for a good many years, is that right? A. Oh, yes.

'Q. Can you give the jury an estimate of the speed that Mr. Elkins was going, as you say when he speeded up or went faster? A. He was doing about thirty or thirty five coming up David.

'Q. When he increased his speed, can you say how much? A. I wouldn't know how much he was going. He was going faster than I like to ride.

'Q. Would he in your opinion be going faster than thirty five miles an hour? A. Yes, he was.' (Record, P. 30-31).

On cross-examination Mrs. Burke further testified:

'Q. You said something, he speeded up when he crossed the tracks? A. Yes, he did.

'Q. Did you have to stop for a train or anything? A. No sir.

'Q. I believe you said that is the last you remember? A. When we went across those tracks.

'Q. You don't remember anything after you crossed the tracks? A. No, I don't.' (Record, P. 34).

Mre. Needham was driving some distance behind defendant's decedent's car. He noticed that just prior to the collision defendant's decedent's car swerved to the right but he did not see it swerve back to the left; that prior to the collision the car he was following appeared to be in its own lane of traffic.

At the conclusion of all the evidence the defendant moved to amend his answer to insert the word 'or' in between wilful and wanton. This motion was allowed by the Court but in its charge the Court limited the claim of the plaintiff to wanton misconduct as there was no evidence to support any claim that defendant was guilty of wilful misconduct.

Wilful misconduct has been defined as follows:

"Wilful misconduct,' as used in the Ohio guest statute, Section 6308-6, General Code, * * * implies an intention or purpose to do wrong, an intentional deviation from clear duty or from a definite rule of conduct, and not a mere error of judgment.

"Wilful misconduct' on the part of a motorist, within the meaning of the Ohio guest statute, Section 6308-6, General Code, * * * 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 motorist knows or should know that an injury to his guest will be the probable result of such conduct.' Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122, 124. Ulrich v. Massie, 89 Ohio App. 362, 102 N.E.2d 274.

In the second paragraph of the syllabus in the case of Helleren v. Dixon, it is held:

'In an action against the operator of an automobile for...