Opinion
No. 25685
Decided April 22, 1936.
Negligence — Motor vehicles — Guest statute abrogates liability, when — Section 6308-6, General Code — Pleading — Facts revealing element of wilfulness or wantonness — Operator's knowledge of existing conditions — Motor vehicle driven at excessive speed around turn — Guest thrown against insecurely fastened door and precipitated to ground.
1. Section 6308-6, General Code (115 Ohio Laws, 57), effective June 15, 1933, known as the "Guest Statute," completely abrogates the liability of an owner, operator or person responsible for the operation of a motor vehicle to a guest while being transported without payment therefor, for damages for injury or death, excepting where such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of such motor vehicle.
2. In an action for damages for personal injury instituted by a guest against the operator of a motor vehicle, under favor of Section 6308-6, General Code, such guest must plead facts that reveal on their face the element of wilfulness or wantonness, else such pleading is demurrable. ( Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, approved and followed.)
3. In such action the guest must plead unequivocally that the operator of the motor vehicle had knowledge of existing conditions; otherwise no liability is fixed.
4. In such action, wherein it is alleged that the operator of the motor vehicle insecurely fastened the door thereto, put the motor vehicle in motion and drove it at an excessive rate of speed around a sharp turn to the left, whereby the guest was thrown against the door, causing it to open, and precipitating the guest to the ground, causing injury, a failure to allege unequivocally that prior to the accident the operator of the motor vehicle had knowledge of the fact that such door was insecurely fastened, renders the guest's petition defective, and a general demurrer thereto is properly sustained.
ERROR to the Court of Appeals of Cuyahoga county.
On March 14, 1933, the General Assembly of the state of Ohio passed Section 6308-6, General Code (115 Ohio Laws, 57), known as the "Guest Statute," which reads as follows:
"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 while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle."
This section of the General Code became effective June 15, 1933.
On August 25, 1934, Ignazia Vecchio, defendant in error here, filed her amended petition against Santina Vecchio, plaintiff in error, which amended petition is in the words and figures following:
"On the 22nd day of February, 1934, one James Vecchio was the owner of a certain Chevrolet automobile; that on said day, Santina Vecchio, the defendant herein, with the consent of said James Vecchio, was authorized to, and was operating said Chevrolet automobile; and that on said day, this plaintiff was invited by said defendant to become a guest and a passenger in said automobile; that said plaintiff entered said automobile and was requested by the defendant to occupy the right side of the front seat in said automobile; plaintiff says that after she had occupied the right front seat, all as aforesaid, the defendant then and there, in closing the door of said automobile adjacent to the seat where said plaintiff was seated, carelessly and negligently failed to properly and securely close and fasten said door; that she, the plaintiff, did not know, nor in the exercise of care on this plaintiff's part, could know of the aforesaid negligent omission of the defendant, nor anticipate the danger incident to the occupancy of said seat, and of the unfastened condition of the said door, while the said automobile was in operation.
"And so plaintiff further says that after the said negligent closing of said door, all as aforesaid, the defendant, well knowing and being in a position to know that said door was not closed securely, wantonly put said vehicle in operation and drove it over and upon East Boulevard, a duly dedicated highway in said City of Cleveland, and that when the said automobile arrived near the entrance of the driveway leading into St. Luke's Hospital, in the said city, the defendant, without giving any signal or warning of any kind whatsoever, carelessly, wantonly and negligently made a sharp left turn into said entrance of said driveway, at a fast and unreasonable rate of speed, when ordinary care and prudence under the circumstances at such time and place, would have required a much less rate of speed, so that said plaintiff was dislocated from her position on said seat, and against the door of said automobile with such force and violence that said door opened, and plaintiff was precipitated to the ground and sustained the injuries hereinafter more specifically set forth.
"Plaintiff says that defendant was careless and wantonly negligent in the following respects:
"(1) Defendant was careless and wantonly negligent in failing to close the door of the said automobile securely.
"(2) Defendant was careless and wantonly negligent, when in the exercise of ordinary care, she knew or ought to have known, that the said door of said automobile was not closed securely, in proceeding to operate and put said automobile into motion.
"(3) Defendant was careless and wantonly negligent in failing to slacken the speed of said automobile before making the sudden, sharp turn.
"(4) Defendant was careless and wantonly negligent in making a sudden, sharp turn at such a fast and unreasonable rate of speed.
"(5) Defendant was careless and wantonly negligent, when in the exercise of ordinary care, she knew or ought to have known that in making a sudden sharp turn at such a fast and unreasonable rate of speed, would cause plaintiff to be thrown against the said door of said automobile, so as to cause said door to open, and precipitate plaintiff to the ground.
"Plaintiff says that defendant well knew the aforesaid conditions and circumstances, but the plaintiff did not know the same, nor had she the means and opportunity equal with those of the defendant for knowing and appreciating the same; that all of the aforesaid acts and misconduct of the defendant, consisting of wanton negligence, recklessness and carelessness on the part of the defendant, solely and proximately caused the following injuries to this plaintiff: a transverse fracture of lower third of left radius, abrasions and contusions about the entire body; that plaintiff sustained a great shock to her entire nervous system; that prior to being injured as herein described, plaintiff enjoyed good health, and was without pain, but ever since being injured, she has suffered pain, has been weak, sick, sore and disabled; has required and received medical care and attention, and has incurred great expense therefor; that for a long time was totally incapacitated, and thereafter partially so; that her physical and mental health has been undermined and impaired, all to her damage in the sum of Five Thousand Dollars ($5000.00)."
The following demurrer was interposed to this amended petition:
"Now comes the defendant and demurs to plaintiff's amended petition and for reason therefor says that said amended petition does not state facts sufficient in law to constitute a cause of action against this defendant."
This demurrer was sustained by the Court of Common Pleas of Cuyahoga county, and plaintiff not desiring to plead further, judgment was entered for defendant. Error was prosecuted to the Court of Appeals of such county, which court reversed the judgment of the Court of Common Pleas and remanded the case to that court for further proceedings.
Error is prosecuted to this court to reverse the judgment of the Court of Appeals.
Mr. William A. Kane, Mr. Frank J. Kus and Messrs. Quigley Byrnes, for plaintiff in error.
Mr. D.H. Laurienzo and Mr. David Perris, for defendant in error.
The parties will be referred to as plaintiff and defendant as they stood in the trial court.
As this cause was filed after the operative date of the so-called "Guest Statute," it was necessary for plaintiff to bring herself within the purview of that act.
She was a guest of the defendant at the time of injury, and unless she alleged wilful or wanton misconduct on the part of the defendant as the proximate cause of her injuries, she would be out of court on demurrer before she had fairly started, so she employs the following specifications of negligence, viz.:
"(1) Defendant was careless and wantonly negligent in failing to close the door of the said automobile securely.
"(2) Defendant was careless and wantonly negligent, when in the exercise of ordinary care, she knew or ought to have known, that the said door of said automobile was not closed securely, in proceeding to operate and put said automobile into motion.
"(3) Defendant was careless and wantonly negligent in failing to slacken the speed of said automobile before making the sudden, sharp turn.
"(4) Defendant was careless and wantonly negligent in making a sudden, sharp turn at such a fast and unreasonable rate of speed.
"(5) Defendant was careless and wantonly negligent, when in the exercise of ordinary care, she knew or ought to have known that in making a sudden sharp turn at such a fast and unreasonable rate of speed, would cause plaintiff to be thrown against the said door of said automobile, so as to cause said door to open, and precipitate plaintiff to the ground."
On these allegations the plaintiff must stand or fall.
This court recently held, in the case of Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567:
"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 must be pleaded which reveal on their face the element of wantonness."
In the same case "wanton misconduct" was defined 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."
Let us apply the law announced in that case to the allegations of this petition.
The word "wantonly" is used with reckless abandon in the specifications of negligence, and its evident purpose is to intensify the negligence therein alleged.
It was held in the third paragraph of the syllabus in the case of Universal Concrete Pipe Co. v. Bassett, supra, that "wanton negligence" was a misnomer. However, were the petition in the instant case otherwise good, we would not permit the misuse of the term to nullify it.
Every negligence case has a nucleus about which the case is constructed. We find the nucleus in this case in the following allegations, viz.: That defendant negligently closed the door of the automobile and thereafter drove it at an unreasonably fast rate of speed while making a sharp left turn, whereby plaintiff was thrown against the insecure door which opened and she was thereby precipitated to the ground and injured.
Had it not been for the insecure door there would have been no injury, according to plaintiff's pleading, as she alleged that she was injured by being precipitated to the ground. Now there would be no liability on the part of defendant in this case unless she knew that the door of the automobile was insecurely fastened, and unless such fact was alleged in plaintiff's petition it would not be good as against demurrer.
An attempt is made in the narrative part of the amended petition to allege knowledge on the part of defendant, in the following words: "The defendant, well knowing and being in a position to know that said door was not closed securely, wantonly put said vehicle in operation."
Whatever virtue lies in this allegation is neutralized in the second specification of negligence, wherein plaintiff states that "Defendant was careless and wantonly negligent, when in the exercise of ordinary care she knew or ought to have known, that the said door of said automobile was not closed securely, in proceeding to operate and put said automobile into motion." (Italics ours.)
The insecurely fastened door was an existing condition of which defendant must have had knowledge in order to fix liability upon her primarily, and with such knowledge she must have known that the subsequent operation of the automobile would in all common probability result in injury to her guest, before recovery against her would be warranted.
The amended petition herein, because of its failure to unequivocally allege knowledge of the aforesaid existing condition on the part of defendant, fails to fix and fasten liability upon the defendant and for such reason is demurrable.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.