Universal Concrete Pipe Co. v. Bassett, No. 25391.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtSTEPHENSON
Citation200 N.E. 843,130 Ohio St. 567
Docket NumberNo. 25391.
Decision Date25 March 1936
PartiesUNIVERSAL CONCRETE PIPE CO. v. BASSETT.

130 Ohio St. 567
200 N.E. 843

UNIVERSAL CONCRETE PIPE CO.
v.
BASSETT.

No. 25391.

Supreme Court of Ohio.

March 25, 1936.


Error to Court of Appeals, Erie County.

Action by Charles Bassett against the Universal Concrete Pipe Company. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error.-[Editorial Statement.]

Reversed, and final judgment entered for defendant.

On June 3, 1933, Charles Bassett filed his petition in the common pleas court of Erie county, Ohio, against the Universal Concrete Pipe Company, claiming damages in the sum of $50,000 for personal injury and property damage alleged to have been sustained by him on the evening of December 4, 1931, at about 8 o'clock p. m.

He alleges that at such time he was driving south on Hancock street in the city of Sandusky, Ohio, and had reached the southern extension known as Milan road, in a model T Ford four-door sedan automobile, with his wife in the front seat and his daughter in the rear seat. The record discloses that a truck of the Universal Concrete Pipe Company, driven by one Ronald Dobbs, left Cleveland, Ohio, that afternoon with a load of galvanized wire, in rolls, for delivery to the company's plants located near the Soldiers' Home on Milan road. Dobbs was unfamiliar with the location of the company's plants, drove past them into Sandusky, made inquiry as to such location, and headed south on Milan road. At a point nearly opposite a store kept by a man by the name of Primo Cassidy, Dobbs stopped his truck, went across the street to the store to again ask the location of the plant where the wire was to be delivered. He had been in the store two or three minutes, heard a crash, came out and found that a model T Ford had collided with the rear end of his truck. Dobbs had examined his lights when at Milan, and they were then burning; but he does not testify that the taillight on his truck was burning when he left it. Whether or not such light was burning was a disputed fact.

Bassett, the owner and driver of the Ford car that collided with the truck, testified that the evening in question was foggy and rain was falling; that immediately prior to the collision he was driving at the rate of 15 to 18 miles per hour, with his dimmers on, and he states that he could only see ‘twenty feet with that rain.’ He further testified that, driving at a rate of from 15 to 18 miles per hour, he could stop within 40 feet. He qualified by saying that he might be wrong, and that he ‘never heard or had the experience.’

The point of collision was on a street supplied with city lights. There is no dispute that there was a city light 100 feet north of Cassidy's store, and another 400 feet from it on the south. Bassett says these lights were not burning at the time of the collision. The ‘trouble man’ for the lighting company says that the current was not off, and that no report of lights being out was received at any time during the evening of December 4, 1931.

The original petition filed by Bassett declared on pure, unadulterated negligence.

On August 21, 1934, an amended petition was filed by leave of court, in which the same allegations that were alleged as ordinary negligence in the original petition were characterized as wanton, wilful, gross negligence, and misconduct.

The specific allegations of negligence were to the effect that the company violated one ordinance of the city of Sandusky, in not parking within six inches of the curb, and another in failing to have a red light displayed on the rear of its truck, and in like manner violated the laws of Ohio.

The company answered, admitting practically all the averments of the amended petition except those wherein negligence and the extent of injury were alleged. It admits the ordinances in question, but says it could not violate the curb ordinance, as there was no curb at the point where its truck was parked. It alleges that Bassett was guilty of contributory negligence in that he failed to keep a proper lookout prior to and at the time of the collision, and he so drove his car, at such time and place, at a speed greater than would permit him to bring it to a stop within the assured clear distance ahead; the weather being misty.

These allegations of contributory negligence were denied by Bassett.

Later by leave of court the company was permitted to plead to the effect that the claim of damages for wanton and wilful negligence filed on August 21, 1934, was barred by the statute of limitations, and thus ended the pleadings and the case went to trial.

Motions were made by the company at the close of plaintiff's case and at the close of all the testimony, for directed verdict, and same were overruled.

The court charged the jury on the question of wanton negligence, and stated therein that if the jury found the company to be guilty of wanton negligence under the law as the court gave it, it would not consider the plea of contributory negligence of the company, as it would not be available to it.

Exceptions were taken by both parties to the charge of the court.

The jury returned a verdict for Bassett in the sum of $8,000. Motion for new trial was made in due time, and overruled. Error was prosecuted to the Court of Appeals of Erie county to reverse the judgment of the court of common pleas. The Court of Appeals affirmed the judgment of the court of common pleas, and error is prosecuted to this court to reverse the judgment of the Court of Appeals.



Syllabus by the Court.

[Ohio St. 567]1. Mere negligence is not converted into wanton misconduct by the use of the word ‘wanton’ in connection with the specifications of negligence. If wanton misconduct is relied upon for recovery in an action for damages for personal injury, facts [Ohio St. 568]must be pleaded which reveal on their face the element of wantonness.

2. Wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A.L.R. 131, third paragraph of the syllabus, and Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, 191 N.E. 745, second paragraph of the syllabus, modified.

3. Regardless of the fact that the term ‘wanton negligence’ is sometimes used both in text and opinion, such use is unwarranted, as it is a misnomer, pure and simple. Wanton misconduct is positive in nature, while mere negligence is naturally negative.

4. A party charged with wanton misconduct is deprived of his plea of contributory negligence.

5. The parking of an unlighted truck for a few minutes on the proper side of a city street after dark on a misty, rainy night, two feet from the curb, if there was a curb, in order that the driver, who had lost his way, might cross the street and make inquiry, the lights of which truck were burning several miles away and several minutes before collision, while negligence, is not wanton misconduct, and the injunction of the element of wanton misconduct into such case to the point that the trial court instructs the jury on such cases, constitutes prejudicial error, and a judgment based thereon must be reversed.


[Ohio St. 571]

[200 N.E. 845]

King, Flynn & Frohman, of Sandusky, for plaintiff in error.

John F. McCrystal and John F. McCrystal, Jr., both of Sandusky, for defendant in error.


STEPHENSON, Judge.

It is becoming ultrafashionable in Ohio in personal injury cases to allege that the acts or omissions that proximately caused the injuries complained of were wanton.

The term ‘wilful’ is seldom used alone, but quite often the acts or omissions are characterized as both wilful and wanton. We have no degrees of negligence in Ohio. We define negligence as the failure to exercise ordinary care, and we can properly denominate such negligence as ordinary negligence. In some jurisdictions it is referred to as ‘simple’ negligence; in [Ohio St. 572]others, ‘mere’ negligence. There is ‘method in the madness' that prompts the use of the word ‘wanton’ in such cases. In the first place it is difficult of definition, but that is not its cardinal virtue. The unfortunate individual against whom wanton misconduct is charged is deprived of his plea of contributory negligence. He may have a plea of contributory negligence so chock full of merit that it would defeat a particular action for damages for ordinary negligence instanter, but when the party who institutes the action by simple legerdemain places the word ‘wanton’ before the specifications of negligence, the unfortunate defendant is barred of the only meritorious plea he had, and he is driven to the extremity of a general denial; a most dangerous plea in an action for damages for personal injury.

That is not the only ‘wallop’ that the little word ‘wanton’ carries with it. It permits, in addition to compensatory damages, the assessment of punitive damages-damages by way of punishment, if you please; damages of such...

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131 practice notes
  • Thornsbury v. Thornsbury, No. 12208
    • United States
    • Supreme Court of West Virginia
    • June 18, 1963
    ...Com.Pl.), 152 N.E.2d 162; Schulz v. Fible, 71 [147 W.Va. 781] Ohio App. 353, 48 N.E.2d 899; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 'Guest statutes, like the one in Ohio, being in derogation of the common law, are to be strictly, albeit reasonably,......
  • Lones v. Detroit, Toledo and Ironton Railroad Company, No. 17912.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 31, 1968
    ...wanton misconduct which would deprive the defendant of the defense of contributory negligence. Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 646 Sympathy for plaintiff's severe injury weighs heavily in her favor but cannot be considered in determining li......
  • Estate of Graves v. Circleville, No. 06CA2900.
    • United States
    • United States Court of Appeals (Ohio)
    • November 21, 2008
    ...of negligence." (Emphasis added.) Sawicki, 37 Ohio St.3d at 230, 525 N.E.2d 468. In Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 5 O.O. 214, 200 N.E. 843, the Supreme Court of Ohio distinguished wanton conduct from negligence. The court found the term "wanton negligence"......
  • Wright v. Cnty. of Franklin, Case No. 2:10–cv–715.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 26, 2012
    ...Ohio cases have considered gross negligence to be the equivalent of recklessness. See, e.g., Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 (1936); Said v. Slabe Mach. Prods., Co., 11th Dist. No. 93–L–089, 1994 WL 315706, at *2–3, 1994 Ohio App. LEXIS 2754, at *7 (Ju......
  • Request a trial to view additional results
130 cases
  • Thornsbury v. Thornsbury, No. 12208
    • United States
    • Supreme Court of West Virginia
    • June 18, 1963
    ...Com.Pl.), 152 N.E.2d 162; Schulz v. Fible, 71 [147 W.Va. 781] Ohio App. 353, 48 N.E.2d 899; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 'Guest statutes, like the one in Ohio, being in derogation of the common law, are to be strictly, albeit reasonably,......
  • Lones v. Detroit, Toledo and Ironton Railroad Company, No. 17912.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 31, 1968
    ...wanton misconduct which would deprive the defendant of the defense of contributory negligence. Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 646 Sympathy for plaintiff's severe injury weighs heavily in her favor but cannot be considered in determining li......
  • Estate of Graves v. Circleville, No. 06CA2900.
    • United States
    • United States Court of Appeals (Ohio)
    • November 21, 2008
    ...of negligence." (Emphasis added.) Sawicki, 37 Ohio St.3d at 230, 525 N.E.2d 468. In Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 5 O.O. 214, 200 N.E. 843, the Supreme Court of Ohio distinguished wanton conduct from negligence. The court found the term "wanton negligence"......
  • Wright v. Cnty. of Franklin, Case No. 2:10–cv–715.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 26, 2012
    ...Ohio cases have considered gross negligence to be the equivalent of recklessness. See, e.g., Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 (1936); Said v. Slabe Mach. Prods., Co., 11th Dist. No. 93–L–089, 1994 WL 315706, at *2–3, 1994 Ohio App. LEXIS 2754, at *7 (Ju......
  • Request a trial to view additional results

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