Tighe v. Diamond
| Decision Date | 02 June 1948 |
| Citation | 80 N.E.2d 122,149 Ohio St. 520 |
| Parties | TIGHE v. DIAMOND et al. |
| Court | Ohio Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. To entitle a guest riding in a motor vehicle operated by his host to recover damages from the latter for injuries resulting from the improper operation of such motor vehicle the guest must, under the Ohio guest statute, Section 6308-6, General Code, establish wilful or wanton misconduct on the part of the host in the operation of such motor vehicle, as the proximate cause of such injuries.
2. To entitle a guest riding in a motor vehicle operated by a minor host to recover damages from the parent, guardian or other person having custody of such minor host holding a minor automobile operators license granted by reason of a joint application of such minor and such parent, guardian or person, for injuries resulting from the improper operation of the motor vehicle by such minor, the guest must, under the Ohio minor automobile operators responsibility statute, Section 6296-10, General Code, establish wilful misconduct on the part of such minor, as the proximate cause of such injuries.
3. 'Wilful misconduct,' as used in the Ohio guest statute, Section 6308-6, General Code, and in the Ohio minor automobile operators responsibility statute, Section 6296-10, 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.
4. 'Wilful misconduct' on the part of a motorist, within the meaning of the Ohio guest statute, Section 6308-6, General Code, and the Ohio minor automobile operators responsibility statute, Section 6296-10, 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.
5. In an action by an automobile guest against his host driver for personal injuries, unless the facts are undisputed, the question whether the host driver intentionally drove the automobile with wilful disregard of the probable results of such driving or whether he intentionally drove the automobile with knowledge, actual or implied, that serious injury would probably result to the guest, is ordinarily one of fact for the determination of the jury.
Appeal from Court of Appeals, Medina County.
This is an action for damages for personal injuries.
On Sunday evening, October 28, 1945, Earl Diamond, a minor almost 17 years of age, while driving his father's car in the city of Wadsworth, invited the plaintiff, Veronica Tighe, 17 years of age, and a girl friend of hers to take a ride with him, which invitation the young ladies accepted.
Diamond occupied the left or driver's side of the front seat, the plaintiff the center of the seat and her girl friend the right. After driving around the city for about a half hour Diamond turned south from state route 224 onto a north and south road known as Durling drive, located on the east side of Wadsworth.
Some distance south of route 224, Durling drive had been crossed by an interurban electric railroad line operating between Wadsworth and Akron. The old roadbed of the car line crossed the highway at approximately right angles, at a grade four or five feet above the general surface level of the highway on either side of the old car line. As a result of the difference in the grade levels of the highway and the old car-line roadbed, there was left an abrupt hump in the highway at the point where it crossed the former railroad right of way. On the evening in question, Diamond drove the car down this highway and over the hump at great speed and wrecked the car. Plaintiff thereby received the injuries for which she seeks damages.
Because defendant Earl Diamond was under 18 years of age, he held a minor automobile operators license granted on the joint application of himself and his father, Samuel J. Diamond, who thereby became jointly liable with his son for any damages caused by the negligence or wilful misconduct of the latter. Accordingly, the father was made a party defendant to this action.
It is conceded that the plaintiff was a guest of Earl Diamond at the time she was injured, and plaintiff's petition charged that her injuries were due to his 'wilful and unlawful misconduct.' At the trial, defendants moved for a directed verdict and for a mistrial because of reference to insurance in the presence of the jury, which motions were overruled. There were a verdict and judgment in favor of the plaintiff.
Other facts are stated in the opinion.
The Court of Appeals affirmed the judgment and this court allowed a motion to certify the record for review.
Buckingham, Doolittle & Burroughs and Dwight Parsons, all of Akron, for appellants.
Brouse, McDowell, May, Bierce & Wortman, of Akron, for appellee.
Since the plaintiff was a guest of defendant Earl Diamond, to warrant a recovery against him it was necessary for her to establish, under the guest statute, Section 6308-6, General Code, wilful or wanton misconduct on the part of such defendant.
The plaintiff also seeks to recover against defendant Samuel J. Diamond because he had joined with his son in the latter's application for a minor automobile operators license under the Ohio minor automobile operators responsibility statute, Section 6296-10, General Code.
That section provides in part as follows:
'(a) The registrar shall not grant the application of any minor under 18 years of age for an operator's or chauffeur's license unless such application is signed by either parent, guardian or other person having custody of the applicant, or in the event there is no parent or guardian then by a responsible person who is willing to assume the obligation imposed under this act.
'(b) Any negligence or willful misconduct of a minor under 18 years of age when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct * * *.' (Italics supplied.)
To create liability against defendant Samuel J. Diamond, under the statute just quoted, it was necessary for the plaintiff to show that Earl Diamond, in the operation of the automobile on the occasion in question, was guilty of 'negligence' or 'wilful misconduct.' But, since the establishing of mere negligence against Earl Diamond could not satisfy the liability requirements of the guest statute, and the establishing of 'wanton misconduct' alone could not create liability against the father under the responsibility statute, the case was tried throughout by the court and the litigants on the theory that to recover a joint judgment against both defendants plaintiff must prove 'wilful misconduct' on the part of Earl Diamond.
The defendants in the Common Pleas Court, appellants in this court, insist that there was no evidence or wilful misconduct to warrant the submission of the case to the jury; that, at most, only negligence was shown which was insufficient to warrant a recovery; and that their motion for a directed verdict should have been sustained.
To determine this question, it is necessary for the court to define and apply to the facts in the instant case the statutory term, 'wilful misconduct,' or the word, 'misconduct,' as described by the adjective, 'wilful,' construing such facts most favorably to the defendants.
Because of the great varity of terms, used in guest statutes of the several states of the United States, relating to the quality or degree of tortious conduct of an automobile host driver necessary to create liability against him in favor of his guest, and because of the careless use of language in court opinions and legal literature describing these terms, great confusion has arisen in the matter of applying them to specific cases. This confusion makes difficult the task of giving the proper interpretation and meaning to the term applicable to the guest statute in force in the jurisdiction of the trial forum. Among these terms so used are 'wilful negligence,' 'wilful tort,' 'negligence,' 'wanton misconduct' and 'wilful misconduct.'
In order to make the conception of the term, 'wilful misconduct,' applicable in this case, as clear as possible, it will be helpful, by definition, to segregate it from other related but differentiated meanings attributed to that term in the law of torts. This is especially important since the scope or limit of liability for such torts is predicated on these distinctions and differences.
The terms, 'wanton negligence,' and, 'wilful negligence,' sometimes used in court opinions and law texts, are complete misnomers. There is no such thing as wanton or wilful negligence. In the opinion in the case of Payne, Dir. Genl. of Rds., v. Vance, 103 Ohio St. 59, 73, 133 N.E. 85, 87, quoting from another case, it is said:
The term, 'wilful tort,' implies an intent or purpose to injure. It is not synonymous with 'wanton misconduct' or 'wilful misconduct'...
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