Opinion
No. 25461
Decided March 11, 1936.
Negligence — Lex loci delicto — Laws of foreign state apply to tort-feasor, when — Action not maintainable in Ohio, when — Foreign state substantive law and Ohio adjective law govern Ohio trial court, when — Reviewing court considers only foreign state laws admitted in evidence, when — Motor vehicle driver required to exercise only ordinary care toward guest — Such holding of foreign court absolute rule in Ohio, when — Reversible error to inject wanton negligence into case, when — Tort-feasor's statements as to individual responsibility, after collision, competent, when — Tort-feasor's plea of guilty to reckless driving, admissible, when.
1. The right of recovery in an action for damages for personal injury depends upon the lex loci delicto.
2. Where an injury was received in the state of Pennsylvania, the alleged acts and omissions of the tort-feasor must be judged by the law of that state in force at the time of the alleged injury and to which law he owed obedience.
3. If the tort-feasor's conduct violated no law of the state of Pennsylvania, no cause of action arose in favor of the injured party in Ohio.
4. Where trial is had in Ohio in an action for damages for personal injury received in Pennsylvania, the trial court must be governed by the substantive law of Pennsylvania and the adjective law of Ohio.
5. In such a case only such law of the state of Pennsylvania, statutory and case, as was admitted in evidence in the trial court will be considered by a reviewing court, where no question as to admissibility is raised.
6. Where the court of last resort of the state of Pennsylvania holds that, in an action brought by a guest against the driver of a motor vehicle for personal injuries wherein it is conceded that the carriage was for the benefit of both the driver and the guest, the driver is required to exercise only ordinary care, such rule becomes absolute in Ohio, in the trial of such case in Ohio, where the injury was received in Pennsylvania.
7. In such a case wanton negligence has no place, unless warranted by the laws of the state of Pennsylvania, and where it is injected into such action by the pleadings, special instructions and the general charge of the court, not being so warranted, reversible error necessarily results.
8. Admissions of an alleged tort-feasor, made two weeks after a collision, relative to his individual responsibility in causing collision, are competent against such tort-feasor.
9. A plea of guilty by an alleged tort-feasor to a charge of reckless driving, predicated upon a collision in which a person was injured, is admissible in an action brought against him by the party injured.
ERROR to the Court of Appeals of Summit county.
On June 22, 1932, Wodard G. Sullivan sued Blair Freas for $50,000 damages for personal injuries.
Sullivan claims that on May 15, 1932, at about the hour of 5:30 p. m., Freas, the owner of a Ford Tudor sedan automobile, was driving same in a southerly direction on State Route No. 80 in the state of Pennsylvania from Mahaffey to Indiana, and that he, Sullivan, was a passenger in such automobile at such time, at the request of Freas, and was sitting in the front seat with him; that such highway was improved with a concrete pavement about 16 feet in width, and the berm at the point in question was rough and unequal to the level of the pavement, and that about 200 feet southwest of such point, curved about 45 degrees to the northwest, and such curve was plainly visible from the point where the alleged collision between the automobiles took place.
When they reached a point in the highway about eight miles north of the town of Clymer, Pennsylvania, Freas was following three automobiles about 200 feet apart, when he suddenly and without warning accelerated the speed of his car and drove to the left of the car ahead of him and partly off the pavement of the highway, and when he was approaching and almost up to the third automobile he suddenly turned to his right, causing his car to come into collision with the left rear side of the third car, thereby causing his car to be turned over numerous times in the road, causing serious injury to Sullivan.
Sullivan then pleads enactments of the state Legislature of Pennsylvania, known as the "Vehicle Code and other Rules of the Road," otherwise known as the Session Laws of 1929, beginning on page 905, and likewise known as Act No. 403. He further alleges that such act and laws of the state of Pennsylvania restricted the speed of Freas' car at the time and place of collision to 40 miles per hour.
He says his injuries were the direct and proximate result of the negligence of Freas in the following particulars, namely:
1. That Freas drove his car negligently and in violation of Section 1001 (a) of the Vehicle Code of Pennsylvania, in that attempting to pass the third automobile he drove carelessly and wantonly, disregarding his (Sullivan's) right and safety, and in a manner so as to endanger his person by driving with the left wheels of the car unnecessarily upon the rough berm of the unimproved portion of the highway at an excessive speed of about 55 miles per hour when approaching and within about 200 feet of aforesaid curve, and by recklessly turning too short off the unimproved portion of the highway before he had passed the third car, without regard to the edge of the pavement, without having his automobile under proper control, and by driving directly into the left rear side of the third car.
2. That Freas failed to drive his car as an "ordinary" prudent person would under the circumstances, and at such time and place drove in violation of Section 1002 of said Pennsylvania Laws, in that he drove at an unreasonable, careless, improper and unlawful rate of speed, to wit, about 55 miles per hour, without having due regard for the traffic then upon such highway, the surface and width of the highway, and other existing conditions, to wit, the rough condition of the berm and the curve, in that, he drove his car at such speed as to endanger his (Sullivan's) life and limb, and at a speed greater than would permit him to bring his car to a stop within the assured clear distance ahead.
3. That Freas was driving his car at the time in direct violation of Section 1007 of the Pennsylvania laws, in that in attempting to pass the third automobile ahead he drove carelessly and wantonly too close to it and collided with it.
4. That Freas was guilty of wanton negligence and misconduct in continuing to drive at undiminished speed and without allowing room to pass the third automobile after he saw it in front of him and right up to the instant of striking it.
5. That Freas attempted to pass the third automobile without sounding his horn or giving any suitable or audible signal, by reason whereof he (Sullivan), was injured and damaged.
Freas admits that on the date alleged he was the owner of a Ford Tudor sedan automobile; that Sullivan was his invited guest in such automobile; that at such time his automobile collided with another automobile on the highway, and that as a result Sullivan sustained some injuries; but he denies the accident happened in the manner claimed, or that Sullivan was injured from the causes or to the extent claimed by him, and he denies each, every and all other allegations made by Sullivan.
He denies he was negligent in any manner. He further states that the accident happened in the state of Pennsylvania and is governed by the laws of that state, and that the laws of Pennsylvania as construed by its courts provide that an invited guest who pays no compensation is not entitled to recover from the driver of an automobile without averring and proving that the accident happened as a result of the gross and wanton negligence of the driver of such automobile.
Sullivan denies each and every allegation made by Freas except such as are admissions, and he denies he was negligent in any manner whatsoever, either as a matter of law or fact.
Upon these issues the parties went to trial. The Pennsylvania statutes pleaded by Sullivan were admitted in evidence, and likewise nine decisions of the court of last resort of the state of Pennsylvania.
At the close of plaintiff's testimony, the defendant moved for a directed verdict in his favor. This motion was overruled. A verdict was returned for the plaintiff, Sullivan. Motion for new trial was filed, presented and overruled, and judgment was pronounced upon the verdict. Error was prosecuted to the Court of Appeals of Summit county, which court affirmed the judgment of the Court of Common Pleas. Error is prosecuted here to reverse the judgment of the Court of Appeals.
Freas, plaintiff in error here, claims there is error in the record and proceedings, namely:
First, that the Court of Appeals erred in affirming the judgment of the Court of Common Pleas of Summit county, Ohio;
Second, that the Court of Appeals erred in failing and refusing to reverse the judgment of the Court of Common Pleas of Summit county, Ohio, and in failing and refusing to render judgment for plaintiff in error.
Messrs. Weick, Powers Mason, for plaintiff in error.
Mr. Edw. N. Heiser and Messrs. Burroughs Burroughs, for defendant in error.
The parties here stand in an order the reverse of that held in the trial court, and they will be referred to in this opinion as they appeared in the style of the case in the Court of Common Pleas, namely, Sullivan will be referred to as plaintiff and Freas as defendant.
Under the general allegations of error assigned in this court, it becomes necessary to consider the assignments of error made in the Court of Appeals. There were six assignments of error urged in the Court of Appeals, namely:
1. In submitting the issue of wanton misconduct to the jury;
2. Error in the general charge on the subject of wanton misconduct;
3. Error in failing to define the duty owing by defendant to plaintiff;
4. Error in refusing to give defendant's special requests Nos. 6 and 7;
5. Error in the admission in evidence of defendant's plea of guilty to a charge of reckless driving, predicated upon the collision in question; and
6. Error in the admission of testimony of Mr. and Mrs. Figg as to statements made by defendant to them after the collision.
We will consider these assignments in inverse order.
The testimony of Mr. and Mrs. Figg was competent. They simply related what Freas had said to them concerning his individual responsibility for the accident, about two weeks thereafter.
Freas' plea of guilty to the charge of reckless driving, being predicated upon the collision in question, was admissible for two reasons: It reflected directly upon the question of his negligence, and, as by answer he denied he was negligent, it would likewise reflect upon his credibility.
The alleged injury herein was received in the state of Pennsylvania, and the alleged acts and omissions of Freas must be judged by the law of that state in force at the time, and to which he owed obedience. If his conduct according to that law violated no right of Sullivan, no cause of action arose Whether recovery can be had depends upon the lex loci delicto.
While this proposition of law is fundamental, it might be well to note that this court announced it in the case of Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N.E. 69. This case must likewise be determined upon the Pennsylvania law, case and statutory, that was admitted in evidence during the progress of this case in the trial court, as the law of one state becomes a fact in another.
To put it tersely, this case must be determined upon the substantive law of Pennsylvania and the adjective law of Ohio. We have carefully examined the Pennsylvania cases admitted in evidence, and the following is a synopsis of the law we extract therefrom:
Cody v. Venzie, 263 Pa. St., 541, 107 A. 383: The law of negligence in Pennsylvania recognizes the degrees of negligence, viz.: Slight, ordinary and gross. If the carriage is for the benefit of driver and guest, the driver is required to exercise only ordinary care.
Richards v. Warner Co., 311 Pa. St., 50, 166 A. 496, 87 A.L.R., 1159. This case emphasizes practically the same proposition of law.
Moquin v. Mervine, 297 Pa. St., 79, 146 A. 444: Adds nothing on question of wanton negligence.
Minnich v. Easton Transit Co., 267 Pa. St., 200, 110 A. 273, 18 A. L. R., 296: This case applies where a guest by acquiescence impliedly consents that the driver may test the conditions, in other words, "beat the danger."
Azinger v. Pa. Ry. Co., 262 Pa. St., 242, 105 A. 87: This case deals with the duty of a guest in a motor vehicle approaching a railway crossing under the Stop, Look and Listen rule, and has no application to the instant case.
Cormican v. Menke, 306 Pa. St., 156, 159 A. 36: Holds that a guest is not liable for mere inaction in failing to discover dangers of which he is ignorant, but which might have been discovered had he given attention to the roadway ahead.
Galliano v. East Penn Electric Co., 303 Pa. St., 498, 154 A. 805: This case in no wise reflects upon the issues in the instant case.
Michener v. Lewis, 314 Pa. St., 156, 170 A. 272: States that it is the general duty of the driver of an automobile at all times to have it under such control that it can be stopped before doing injury to any person in any situation that is reasonably likely to arise under the circumstances.
Knox v. Simmerman, 301 Pa. St., 1, 151 A. 678: The facts in this case are very similar to the case before us. The court held: (1) Such a case is not one of res ipsa loquitur; (2) Speed that is not excessive on a straight road may become so when a curve is reached; (3) Speed is excessive whenever it places the car beyond the control of the driver, and this is especially so when passing an obstruction or rounding a curve.
We have considered all the statutory law offered in evidence in the trial court in connection with these cases.
The Supreme Court of Pennsylvania took care of all doubt and perplexity that might arise in the minds of the judges of a foreign court, relative to the liability of the driver of a motor vehicle in Pennsylvania to a guest where the carriage was for the benefit of both, by holding that the driver was required to exercise only ordinary care. Cody v. Venzie, supra.
The subsequent statutory enactments of the state of Pennsylvania offered in evidence in the trial court in the instant case in no wise affect the rule. It stands as a rule we must follow.
It is conceded that the collision in question took place in the state of Pennsylvania; that Sullivan, the guest, and Freas, the driver, were both being benefited by the operation of the motor vehicle, as they were returning home to Akron from a visit in Pennsylvania. Freas under all the circumstances owed Sullivan the duty to exercise ordinary care to avoid injuring him — and nothing more — and nothing is shown in the laws, case and statutory, of the state of Pennsylvania that warrants the injection of the element of wantonness in the case.
During the trial wanton negligence was injected into the case from so many angles that we will not take time to refer to all of them. Suffice it to say that it came in by way of the third amended petition. It was defined in the special instructions and in the general charge of the court. He charged contributory negligence out of the case in the event the jury found that Freas was guilty of wanton negligence.
The injection of wanton negligence into the case under the laws of Pennsylvania, admitted in evidence during the trial of this case, constituted prejudicial error, and the judgment of the Court of Appeals is reversed.
Judgment reversed.
WEYGANDT, C.J., WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.