Wapplehorst v. Kimmett

• Decision Date: 19 April 1972
• Citation: 30 Ohio App.2d 29,282 N.E.2d 53
• Parties: , 59 O.O.2d 25 WAPPLEHORST, Appellee, v. KIMMETT et al., Appellants, et al.
• Court: Ohio Court of Appeals

Page 29

30 Ohio App.2d 29

282 N.E.2d 53, 59 O.O.2d 25

WAPPLEHORST, Appellee, v. KIMMETT et al., Appellants, et al.

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

April 19, 1972.

Syllabus by the Court

1. Where, in a personal injury action, a jury, in response to an interrogatory as to whether a defendant was guilty of wanton misconduct, replies in the affirmative, but in the explanation of their answer they state findings of fact constituting only negligence, the defense of contributory negligence is available to defeat the charge of wanton misconduct.

2. The use of blown-up photographs during trial which are not identified or introduced in evidence is erroneous.

Meredith, Meredith, Tait & Basinger, and David R. Kinworthy, Lima, for defendants-appellants, Alt and Kimmett.

Dunbar, Kienzle & Murphey, David J. Young, Columbus, for plaintiff-appellee, Wappelhorst.

Cory, Boesel, Leonard & Cory, and William C. Leonard, Lima, for defendant-appellee, Nevergall.

YOUNGER, Presiding Judge.

This appeal arises from a judgment for $35,000 given to the plaintiff against the defendants Daniel E. Kimmett and Cynthia Alt as a result of a jury verdict. The common pleas court refused to direct a verdict for Kimmett and Alt at the close of all the testimony and also refused to render a verdict non obstante veredicto for such defendants. On the evening of August 31, 1966, the defendants, Daniel E. Kimmett and Cynthia Alt, were driving the Alt automobile to the Kimmett home with Kimmett doing the driving. Both were under the age of 18 at the time. As they approached the Kimmett home they decided to change drivers. This was done by stopping their car on their right hand side of the road and by Cynthia Alt, who had been sitting on the right of Daniel E. Kimmett, rising in her seat and permitting Kimmett to slide across to the right side of the seat while she passed over him and took her place on the left behind the steering wheel. While this was taking place they heard the noise of a motorcycle which was driven by the plaintiff approaching them from the rear. The defendants maintained this position and the plaintiff did not slacken his motorcycle speed and contends he did not see the automobile until too close to slow down or stop and drove his motorcycle into the stopped automobile with such force that the front of the motorcycle was driven under the automobile and wedged thereunder so that it remained running and standing.

Plaintiff-appellee was thrown forward over the front of the motorcycle, struck the left rear fender of the automobile and was thrown to the left side of the automobile in the left lane of travel on the highway with his head approximately opposite the left front door of the stopped automobile and pointing in the direction in which the automobile was headed. The occupants of the automobile immediately got out on their respective sides and went to the rear of the automobile where Kimmett turned off the motorcycle where it was still standing and gave their attention to the plaintiff lying in the roadway. At this particular moment automobile headlights were seen approaching from the opposite direction in which the stopped car was headed in the lane of traffic where plaintiff-appellee was lying. The defendants signaled the approaching car and it slowed down to approximately 5 or 6 miles per hour but proceeded to run into the plaintiff, who had his motorcycle helmet still on, and dragged or pushed him some 30 feet before coming to a stop with plaintiff partly under the automobile. This automobile was driven by the defendant Nevergall. There is a dispute as to whether the lights of the Alt automobile were lighted. The defendants claiming that they were and the plaintiff testified that while he was lying in the road before the other car approached he saw the lights of the Alt car come on. The plaintiff sustained very serious injuries.

At the trial, the plaintiff admitted running into the parked automobile and the court charged the jury that the plaintiff was guilty of contributory negligence as a matter of law. The plaintiff's claim to recover from the defendants was on the ground that they were chargeable with wanton misconduct.

Two interrogatories were submitted to the jury. The first asking whether the defendants were guilty of wanton misconduct, to which the jury answered yes. The second interrogatory requested that if their answer to the first interrogatory was yes, to 'state of what that wanton misconduct consisted.' To this second interrogatory the jury answered:

'They stopped their vehicle in a position of probable harm to eastbound vehicles. They did not exercise caution or concern to signal said eastbound vehicles.'

It should be stated here that the Alt automobile stopped in its traveled portion of the highway or country road headed east. The question, therefore, is whether or not the answer of the jury, giving it the interpretation most favorable to the plaintiff, states facts which under the conditions then and there existing constituted wanton misconduct.

In the case of Roszman v. Sammett, 26 Ohio St.2d 94, 269 N.E.2d 420, which is the latest pronouncement of the Supreme Court of Ohio on wanton misconduct, the Supreme Court said in the second paragraph of the syllabus, as follows:

'To constitute wanton misconduct justifying recovery, the conduct of the tort-feasor must be more than negligent: it must be such conduct with knowledge of a dangerous situation liable to cause injury to others, as manifests a heedless disregard for or indifference to the rights of others or for the consequences, i. e., such conduct as manifests a disposition to perversity. (Paragraph two of the syllabus of Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, approved and followed; Kellerman v. J. S. Durig Co., 176 Ohio St. 320, 199 N.E.2d 562 distinguished.)'

In its opinion, the Supreme Court further said at page 97, 267 N.E.2d at page 422.

'In order to establish wantonness, the conduct must be supported by evidence that shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reasonable, correct or generally accepted as a course to follow in protecting the safety of others.'

This court of appeals had considerable trouble with the case of Roszman v. Sammett before it reached the Supreme Court of Ohio. See 20 Ohio App.2d 255, 254 N.E.2d 51.

In this case, therefore, it becomes necessary to test the answer of the jury to the second interrogatory by the law as pronounced in the Roszman case and the second paragraph of the syllabus in the case of Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N,.e. 843, which the Supreme Court approved and followed. Do the facts as stated in the answer constitute, in law, wanton misconduct? If they do not, the verdict of the jury cannot be upheld as such verdict would then be supported only by negligence. This court is of the opinion that the facts stated by the jury in its answer constitute only negligence. If the defendants stopped their vehicle in a position of probable harm, that constituted negligence by a positive act. If they did not exercise caution or concern, that conduct was negligence in a negative manner.

In this case the plaintiff was eviscerated. The gouge in his abdomen was so large that the surgeon operated on his kidneys, liver and gall bladder without enlarging it....