State v. Wells

• Decision Date: 26 December 1945
• Docket Number: 30398.
• Citation: 146 Ohio St. 131,64 N.E.2d 593
• Parties: STATE v. WELLS.
• Court: Ohio Supreme Court

64 N.E.2d 593

146 Ohio St. 131

STATE v. WELLS.

No. 30398.

Supreme Court of Ohio

December 26, 1945

Syllabus by the Court.

1. Section 6307-20, General Code, which provides that 'no person shall operate a vehicle, trackless trolley or streetcar without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles trackless trolleys and streetcars, and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways,' is a law applying to the use or regulation of traffic within the provision of Section 6307-18, General Code, that 'whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.'

2. The rule of statutory construction, that where general words are used after specific terms, the general words will be limited in their meaning to things of like kind and nature as those specified, should not be applied where the manifest intention of the Legislature is clearly to the contrary and the application of that rule would result in a subversion of the purpose of the legislation, or where such application is inconsistent with other controlling rules of construction or statutes in pari materia.

3. The words, 'without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and streetcars,' as used in Section 6307-20, General Code, do not limit or restrict the subsequent words, 'and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways,' and do not exclude therefrom or relieve from the penalty for the violation thereof one who as a proximate result of his reckless driving of an automobile on the highway, kills a person who with the driver's consent is an occupant of the automobile.

BELL, ZIMMERMAN, and TURNER, JJ., dissenting.

Certified by Court of Appeals, Butler County.

The grand jury of Butler county, Ohio, returned an indictment charging Earl Wells with manslaughter in the second degree. The indictment contained three counts: The first charged him with operating a motor vehicle on a public highway while under the influence of alcohol and thereby unlawfully and unintentionally killing Sherman Jeanette; the second charged him with the unlawful and unintentional killing while engaged in driving a motor vehicle upon a public highway at a greater speed than 50 miles an hour, to wit, 60 miles an hour; and the third charged him with the unlawful and unintentional killing while driving a motor vehicle upon a public highway 'without due regard for the safety and rights of pedestrians and drivers and occupants in the lawful use of the roads and highways,' the third count being based upon the provisions of Section 6307-20, General Code.

Upon application of the prosecuting attorney, amendment of the third count of the indictment was permitted by the trial court. As so amended, it charged that the defendant, while engaged in driving a motor vehicle upon the public roads and highways 'without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of any person while in the lawful use of the roads and highways, unlawfully and unintentionally did kill one Sherman Jeanette * * *.'

Upon the trial of the case, the first count was withdrawn from the consideration of the jury at the conclusion of all the evidence. The verdict of the jury found 'Earl Wells guilty of manslaughter in the second degree as he stands charged in the third count of the indictment, and not guilty as he stands charged in the second count of the indictment.'

After overruling defendant's motion for a new trial, the trial court issued its order 'that the imposition of sentence against the said defendant be suspended and that he be placed on probation for a period of three years and that he be paroled into the custody of' a person therein designated by the court.

Upon appeal to the Court of Appeals, that court reversed the judgment of the Court of Common Pleas and remanded the cause to such court with instructions to dismiss the defendant, upon the ground that 'an indictment for second degree manslaughter, defined in Section 6307-18, General Code, may not be based on Section 6307-20, General Code, for the death of an occupant or guest in defendant's own vehicle.'

The members of the Court of Appeals, finding the judgment, upon which they had agreed, to be in conflict with judgments pronounced upon the same question by the Court of Appeals of the Fourth Appellate District of Ohio in the cases of Masoncup

v. State, 47 Ohio App. 32, 189 N.E. 512, and Barber v. State, 5 O. L. A. 780, ordered the record of the case certified to this court for review and final determination.

Paul A. Baden, Pros. Atty., and Marc A. Fiehrer, both of Hamilton, for appellant.

Clinton D. Boyd, of Middletown, for appellee.

MATTHIAS Judge.

The Court of Appeals based its decision solely upon the construction of the provisions of Section 6307-20, General Code, and directed the dismissal of the defendant upon the single ground that a charge of manslaughter in the second degree under the provisions of Section 6307-18, General Code, may not be predicated upon a violation of the provisions of Section 6307-20, General Code, if the person killed was the occupant of the defendant's automobile.

Section 6307-20, General Code, provides as follows:

'No person shall operate a vehicle, trackless trolley or streetcar without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and streetcars, and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.'

Section 6307-18, General Code, provides in part as follows:

'Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.'

It is to be observed that Section 6307-20, General Code, is a 'law of this state applying to the use or regulation of traffic.' It prescribes and establishes a standard of operation in addition to and aside from other statutory provisions prescribing limitations of speed. Failure to observe such regulation of traffic constitutes a violation punishable as specified in Section 6307-107, General Code.

The conclusion of the Court of Appeals, that the regulation prescribed by Section 6307-20, General Code, can have no application where the person killed was an occupant of the automobile of the driver, is based upon the ground that the 'doctrine of ejusdem generis should apply to the interpretation of the words 'and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.''

In general terms, that doctrine may be stated as follows: 'Where general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.' 2 Sutherland Statutory Construction, 3d Ed., 395, Section 4909.

It is more fully stated in 37 Ohio Jurisprudence, 779, Section 450, as follows:

'Where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be construed as restricted by the particular designation and as including only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.'

However, the application of that rule of statutory construction is not unlimited. There must be certain other conditions present to justify its application. As stated in 2 Sutherland Statutory Construction, 3d Ed., 400, Section 4910:

'The doctrine applies when the following conditions exist: (1) The statute contains an enumeration by specific words; (2) the members of the enumeration constitute a class; (3) the class is not exhausted by the enumeration; (4) a general term follows the enumeration; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.'

Assuming that the first four conditions are present, is there no clearly manifested intention on the part of the Legislature that the general term be given a broader meaning than the doctrine requires?

It is said in 37 Ohio Jurisprudence, 780, Section 451:

'The doctrine of ejusdem generis is but a rule of construction to aid in ascertaining the meaning of the legislation involved. It is not to be employed in any case to subvert a meaning clearly expressed or to defeat the plain intent of the General Assembly, and it does not warrant a court in confining the operation of a statute within limits narrower than those intended by the lawmakers.'

In Sutherland Statutory Construction, supra, at page 407, we find the following:

'A final qualification on the doctrine is that the general words are not restricted in meaning to objects ejusdem generis if there is a clear manifestation of a contrary intent. In the words of the United States Supreme Court, 'while the rule is a well-established and useful one, it is, like other canons of statutory construction, only an aid to the ascertainment of the true meaning of the statute. It is neither final nor exclusive. To ascertain the meaning of the words of a statute, they may be submitted to the test of all appropriate...