Thomas v. Foody
| Decision Date | 02 November 1936 |
| Citation | 54 Ohio App. 423,7 N.E.2d 820 |
| Parties | THOMAS v. FOODY. |
| Court | Ohio Court of Appeals |
Syllabus by the Court .
1. Acts, to be ‘ wanton’ within the meaning of the ‘ guest statute,’ section 6308-6, General Code must be done with actual knowledge of existing conditions or surrounding circumstances, and must be such as to make the malefactor conscious that his conduct will in all common probability result in injury to his guest.
2. Such acts must be unequivocally pleaded in an action by a guest based on section 6308-6, General Code, to recover for personal injuries from the driver of a motor vehicle.
3. Evidence establishing that the driver of a motor vehicle operated it at an excessive speed around curves in spite of remonstrances on the part of the guest, with knowledge of the existing circumstances, showed a consciousness on the part of the driver that his conduct would in all common probability result in injury to his guest, and is sufficient to show wanton misconduct within the meaning of the guest statute section 6308-6, General Code.
Knepper, White & Dempsey, of Columbus, for appellant.
Crabbe & Tootle, of London, and Garek & Sillman, of Columbus, for appellee.
This is an action for personal injury brought by a guest against his host. It is predicated upon a charge of wantonness. The defense is a general denial. Trial resulted in a verdict for $10,000 in favor of Robert Thomas, plaintiff, appellee, upon which judgment was entered. The defendant, appellant, Carl Foody, appeals therefrom on a question of law. Numerous grounds are advanced for reversal, the first of which attacks the sufficiency of the allegations of the second amended petition. Its averments will first be epitomized.
It is averred that plaintiff became a passenger upon assurance that he would be taken home; that against his objection defendant proceeded from the city of London upon state route 42 northward about four miles towards a point on state route 40; that route 42 thereat is a 20-foot macadam highway; that the car was being driven at a dangerous and excessive speed of 80 miles per hour; that defendant knowingly failed to exercise any care, and to retain control of his car; that the highway contained a charp turn which the defendant knowingly attempted to negotiate; that he violated certain positive provisions of the law; and that his acts in so doing were known by him to be highly dangerous to plaintiff and without regard for his safety. It is alleged that by reason of these things the car left the road at the turn and injured plaintiff and that such was the proximate cause of the injuries sustained.
The predecessors of this pleading were attacked by motions to strike. They were sustained in part. Neither of these three petitions was attacked by motions to make definite and certain, nor was the same demurred to. It may well be here injected that plaintiff's evidence was received at trial without objection. The sufficiency of this pleading is first questioned by a motion for a directed verdict at the conclusion of plaintiff's case. It is again raised by a like motion at the close of all the evidence and in the motion for a new trial and by motion for judgment non obstante veredicto.
When plaintiff's evidence is examined we find the averments of the pleading to be substantiated. In fact, a stronger case is made. It is evidenced that defendant turned one curve and ran upon the berm; that he was asked to slow down; that he did so for a bit and then a speeded up to 85 miles per hour, knowing of the sharp curve ahead.
We fully appreciate that section 11311, General Code, explicitly prescribes that the sufficiency of a petition may be attacked at any time by a motion for a directed verdict. This course of procedure is recognized in Bozzelli v. Industrial Commission, 122 Ohio St. 201, 171 N.E. 108.Our attention is further directed to section 11305, General Code, which is to the effect that a petition ‘ must contain: * * * A statement of facts constituting a cause of action,’ and to its relation to the commonly known guest statute, section 6308-6, General Code, which is impressed upon us by further citation of Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, and Vecchio v. Vecchio, 131 Ohio St. 59, 1 N.E.(2d) 624.
The last cited authority is decided upon a demurrer to the petition. The Bassett Case, 130 Ohio St. 567, at page 570, 200 N.E. 843, 844, when examined, discloses that the original petition charged ‘ pure, unadulterated negligence,’ and that the amended petition therein filed simply charged the allegations of the petition to be wanton and willful misconduct. The court properly held that simply naming these facts of charged negligence as willful and wanton did not make them such. These cases, however, clearly declare that acts to be wanton must be done with actual knowledge of existing conditions or surrounding circumstances, and they must be such as to make the malefactor conscious that his conduct will in all common probability result in injury to his guest, and that such must be unequivocally pleaded.
If the controverted pleading or the introduction of evidence therein had been demurred to we would unhesitatingly have tested it by the rules of these cases; but it may not be forgotten that the second amended petition in this case was not then tested by demurrer, and that the cause proceeded to trial without objection. In view of the situation found in this, a guest case, it does not follow that it is entitled to any special sanctity, but the general rule as found in Crawford v. Kellermier, 123 Ohio St. 404, 175 N.E. 600, should be followed. It is therein held in the second paragraph of the syllabus: ‘ Where the allegations of a pleading are conclusions rather than statements of fact, and such allegations are traversed by a general denial, without any motion having been filed to make definite and certain, the pleading should be liberally construed so as to sustain the pleading if possible, and objections to introduction of evidence on account of the alleged insufficiency of the pleading should generally be overruled, unless there is a total failure to allege matter essential to the relief sought.’
Having in mind that no objection was made to the introduction of plaintiff's evidence, we are now bound to test the sufficiency of the pleading in the light of the evidence offered in support thereof. First, let it be understood that liability was not claimed as a result of any failure to exercise ordinary care, but that the defendant failed to exercise any care for his guest's safety. It is averred and evidenced that defendant was driving at a speed of 80 miles per hour and that a catastrophe was narrowly averted at the first curve; that the defendant knew of this curve and the sharp curve ahead; that in the face of remonstrance speed was increased to 85 miles per hour. Surely it must be conceded that defendant had knowledge of the existing conditions and surrounding circumstance and that the natural probability of his acts would result in...
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