Opinion
No. 72-594
Decided April 25, 1973.
Motor vehicles — Guest statute — R.C. 4515.02 — "Wilful misconduct" defined — "Wanton misconduct" defined — Negligence — Evidence — Overruling motion for directed verdict error, when.
1. "Wilful misconduct," as used in the Ohio guest statute (R.C. 4515.02), implies an intention or purpose to do wrong, an intentional deviation from a clear duty or from a definite rule of conduct, and not a mere error of judgment. (Paragraph three of the syllabus in Tighe v. Diamond, 149 Ohio St. 520, approved and followed.)
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. (Paragraph two of the syllabus in Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, approved and followed.)
APPEAL from the Court of Appeals for Meigs County.
This is a wrongful death action brought by Russell R. Bailey, as administrator of the estate of his daughter, Barbara Jean Bailey, who was killed while riding as a passenger in an automobile driven by the defendant, Harry Glen Brown. Plaintiff's complaint, filed on May 25, 1971, alleges that the defendant was guilty of wanton negligence in that, while driving in Meigs County, Ohio, at a point near the junction of state route No. 7 and county road No. 36, he "purposely and intentionally" turned his vehicle to the left and drove into the opposite lane of traffic into the path of an oncoming vehicle, which resulted in a collision, and that as a result Barbara Jean Bailey was killed.
The evidence discloses that on the night of May 26, 1969, at approximately midnight, the defendant, who was 16 years of age, was operating an automobile in a northerly direction on Route 7, a two-lane highway. Plaintiff's decedent, Barbara Jean Bailey, a passenger, was sitting on the right-hand side of the front seat, with another passenger seated in between. Defendant was driving at a speed of between 50 and 55 miles per hour.
Route 7, north of the village of Chester, is intersected from the west by Summer Road, also known as county road No. 36. The terrain at the intersection is level. As the defendant proceeded north on Route 7 he was driving the vehicle in a normal manner, and there was no evidence of any erratic driving. As defendant approached the intersection, he applied his brakes, slowed down, and turned on his left-turn signal. He intended to turn into Summer Road. At about this time, an automobile driven by one Forrest Roger Barnett was proceeding in a southerly direction on Route 7 at about 50 miles per hour and approaching the intersection. There was another car stopped on Summer Road, awaiting an opportunity to enter Route 7.
Defendant, after turning on his directional signal and slowing down, glanced up but did not stop, then started to turn left. This left turn took defendant's car into the path of the oncoming vehicle, and consequently a collision occurred in which plaintiff's decedent was killed.
The defendant testified that the only vehicle he saw at the intersection was the vehicle stopped on Sumner Road. He said that, as he approached the intersection, he had seen headlights at the "top of the hill," which he estimated to be a quarter of a mile north of the intersection. He further admitted on cross-examination that he did not know why he turned in front of the oncoming vehicle, but admitted that, if he had looked, he could have seen the vehicle.
A jury trial, held in the Court of Common Pleas, resulted in a verdict and a judgment for plaintiff. During trial, defendant moved for a directed verdict at the close of plaintiff's case and again at the conclusion of all the evidence. Both motions were overruled.
Defendant appealed, and the Court of Appeals, one judge dissenting, affirmed the judgment of the trial court.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Halliday Sheets, Mr. Warren F. Sheets, Messrs. Webster Fultz and Mr. Bernard V. Fultz, for appellee.
Messrs. Walker, Mollica Gall and Mr. Homer B. Gall, Jr., for appellant.
Since the parties agree that plaintiff's decedent was a guest in defendant's car, the liability that must be shown for plaintiff to prevail is regulated by R.C. 4515.02, commonly known as the "guest statute," which states:
"The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle."
The sole issue presented in this appeal is whether, under the evidence, reasonable minds could differ upon whether the conduct of defendant could be characterized as wilful or wanton misconduct. The issue arises by reason of defendant's motion for a directed verdict. Upon such a motion, the trial court is required to construe the evidence most strongly in favor of the party against whom it is made, and if it finds upon any determinative issue that reasonable minds could come to only one conclusion upon the evidence, and that conclusion is adverse to the nonmoving party, the motion must be sustained.
There is no question of fact in dispute. The only dispute is whether the conduct of defendant, considering all the circumstances, can be characterized as wilful or wanton misconduct.
Wilful misconduct is defined in paragraph three of the syllabus in Tighe v. Diamond (1948), 149 Ohio St. 520:
"`Wilful misconduct,' as used in the Ohio guest statute, Section 6308-6, 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."
It is essential to fathom the mind of the defendant to determine whether he had the requisite intent for his behavior to be considered wilful misconduct. As the court in Tighe, at page 527, explained intent:
"* * * The word, `wilful,' used in the phrase, `wilful misconduct,' implies intent, but the intention relates to the misconduct and not merely to the fact that some specific act, such as operating an automobile, was intentionally done.
Applying that explanation, for there to be wilful misconduct it must be shown that defendant's intention was to "perform some misconduct," not merely that his intention was to turn the car. In this case, there was no testimony that defendant's intention was to perform some misconduct; the testimony supported only defendant's intention to turn the car. Nor was there an intentional deviation from a clear duty. The conduct of defendant here is quite different from that in Tighe, where the defendant was held guilty of wilful misconduct:
"* * * Earl Diamond deliberately and intentionally planned to rush over the hump in the road at a rate of 60 miles an hour and throw the car up in the air so that its leap and landing would give his passengers a thrill." Tighe, at page 530.
In Tighe the court held that such a scheme of conduct was clearly wrong and that defendant should have recognized it as a violation of a duty toward his passengers. Here, defendant's conduct does not show a violation of such a duty as there was in Tighe. There was no evidence of an intention on the part of defendant to do any wrong; rather, it was an error of judgment, albeit serious.
"Wanton misconduct" is defined in paragraph two of the syllabus in Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, as follows:
"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."
The record indicates that defendant, immediately preceding the collision, was driving at a rate near the speed limit; that one quarter of a mile from the intersection he noticed car headlights approaching from the opposite direction; that he slowed down and put on his left-turn directional signal; and that as he commenced the turn he was unaware of the oncoming car. There is nothing in those facts to indicate a disposition to perversity. There is no perversity in failing to come to a complete stop before turning left, or in failing to check the oncoming lane of traffic, although such conduct may indicate negligent behavior.
Nor is there anything in the record to indicate that defendant knew his act would in all probability result in injury. It is very probable that, if one turns his car into the path of a car approaching from the opposite direction, he will injure himself and the others in the car. Defendant, however, testified that he did not remember seeing the approaching car.
The plaintiff argues that, even if there was no actual wilful or wanton misconduct, there was a constructive intention to do a wilful, intentional act, which is imputed by law. The court explained this in Tighe at page 528:
"`There is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes to the offender, and in this way a charge which otherwise would be mere negligence, becomes by reason of a reckless disregard of probable consequences, a wilful wrong.'"
An essential prerequisite to the imposition of a constructive intention is a reckless disregard of the probable consequences. Here, there was no reckless disregard of the probable consequences. The consequences that defendant was aware of were those resulting from making a left turn without stopping. However dangerous such a left turn might be, it does not have the probability necessary to impute a constructive intention.
Plaintiff argues further that the jury might have drawn inferences from the facts presented in evidence which would support a conclusion of wilful or wanton misconduct. Inferences must be drawn from the evidence; inferences upon inferences are not allowed. Hurt v. Rogers Transp. Co. (1955), 164 Ohio St. 329. The only conceivable inference helpful to plaintiff's case is that defendant made the left turn into the path of the oncoming car, conscious of and indifferent to the probable results of his course of conduct, i.e., injury or death to the occupants of his car. There is no evidence in the record that defendant was perverse in his conduct.
The evidence in the record is not such that reasonable minds could differ as to the conduct of defendant. Some may characterize his behavior as negligent; but there is no evidence to characterize his conduct as wilful or wanton misconduct as this court has defined that term. Since plaintiff did not introduce evidence to show that defendant's conduct constituted wilful or wanton misconduct, it follows that the trial court erred in overruling defendant's motion for a directed verdict. The judgment of the Court of Appeals is reversed, and final judgment is rendered for the defendant.
Judgment reversed.
O'NEILL, C.J. HERBERT, POTTER, STERN and P. BROWN, JJ., concur.
CELEBREZZE, J., dissents.
POTTER, J., of the Sixth Appellate District, sitting for CORRIGAN, J.