
    De Lisa v. Scott.
    
      (Decided March 7, 1934.)
    
      Mr. Loyd R. Read, for plaintiff in error.
    
      Messrs. Romweber & Romweber, for defendant in error.
   Washburn, P. J.

The parties will be referred to as they appeared in the Court of Common Pleas.

Plaintiff, Neal Scott, brought an action against the defendant, John B.. De Lisa, in which he alleged that on or about the 18th day of April, 1931, at the hour of about 1:10. a. m., and while the plaintiff was walking south across East Market street between intersections, the defendant, while operating his Franklin sedan automobile along East Market street, going in a westerly direction, “in violation of the laws of the State of Ohio, unlawfully and wrongfully assaulted, beat and struck this plaintiff, by, striking him with his Franklin sedan automobile,” and inflicted certain injuries to his person, and that by reason thereof he was damaged in the sum of $10,000, for which judgment was asked.

The petition contains no allegations of negligence, nor the violation of any particular law on the part of plaintiff, and bases the claim of the plaintiff squarely and entirely upon an unlawful assault and battery.

After a demurrer to said petition had been overruled, the defendant answered, admitting that East Market street was a public paved thoroughfare in the city of Akron, and extended in an easterly and westerly direction, that it was improved to the width of about 60 feet, and that the place where the plaintiff claimed to have been crossing said street was in a closely built-up section of the city, and denying every other allegation and averment contained in plaintiff’s petition.

The trial resulted in a verdict and judgment for the plaintiff.

The plaintiff, who was a man about 32 years old, testified that he was distributing papers on said night, and that when he was injured he was in the act of crossing said street between intersections; that at the point where he name to the curb several automobiles were parked parallel with the curb, and that before he left the curb he did not look to the east or west to see what was approaching; and that he passed between two of said parked cars and “got as far as the street car tracks, when I saw a machine coming from the east, coming in a westerly direction, for which I stopped and allowed the machine to pass; and then at the same time there was a street car passing, going east, and I started to go across again. I started to go on further, and I turned around and I saw Mr. De Lisa’s ear coming at a fast rate of speed. It was so fast that I could not avoid the accident.”

He also testified that he had been working that route for about two months, and that he was perfectly familiar with the location, and had crossed the street in that neighborhood some 150 or 200 times. He also testified that he did not observe the approach of the defendant’s ear until the same was within 5 or 6 feet of him, and, with that chance of observation, he was permitted to testify that the defendant’s car was going 40 or 50 miles an hour. He also testified that he saw a street car coming some distance away, bnt that he conld not judge the speed of it.

He also testified, upon cross-examination, that, after he passed out from between said parked cars, and when he was some 6 to 8 feet in the street, he looked east, and did not see any automobile approaching; that he looked west and saw a street car approaching; that, when close to the street car, he,stopped; and that, as the street car, going east, and an automobile, going west, were about to pass each other at the point where he was standing, he stepped back to the north and allowed the automobile to pass between him and the street ear, and that before he could get out of the way he was hit by defendant’s car.

At another point in his testimony he testified that he had proceeded past the middle of the street, and was hit on the south side of the center of the street, that he rolled about 15 feet, and that the front part of the defendant’s car stopped within a few feet of where he was lying.

He also testified that he told the police officer who helped pick him up that he thought the collision was his (plaintiff’s) fault, and that he told the same thing at the hospital later, but said that he was in a dazed condition. He also testified that he was carrying quite a large bundle of newspapers and was walking fast.

A policeman, who was standing on the south side of the street near the point the plaintiff was approaching when he crossed the street, and who observed the plaintiff before he started to cross the street and all the time while he was crossing the street, testified that at no time during the transaction was there a street car there, nor an automobile that passed, going westerly, along the street just ahead of the defendant’s automobile, and that the plaintiff, without looking in either direction, ran out into the street from between said parked automobiles just at the time the defendant’s automobile, wbicb was being driven on the right-hand side of the street and along parallel to said parked cars, reached said point, and that the collision occurred so soon after the plaintiff emerged from between said cars that he (the policeman), although he saw and observed and sensed the danger, did not have time to cry out a warning; that the plaintiff rolled about 15 feet, and that the defendant stopped the front part of his car at a point 3 feet short of the place where plaintiff came to rest; that at the time of the accident there was not a soul in the street except said policeman and the plaintiff; that he (the policeman) observed the defendant’s car for some 300 or 400 feet, and that it was traveling on the right-hand side of the road and was going between 20 and 25 miles an hour; that the defendant, just before the collision, turned his car sharply toward the center of the street in an attempt to avoid the collision, and almost succeeded in doing so, but that the right-hand corner of the bumper collided with the plaintiff; and that he (the policeman) went at once to the plaintiff and assisted him-to arise, and that the plaintiff did not appear to be in a dazed condition, said he was not hurt, and, when he (the policeman) told the plaintiff that he should have looked before he crossed the street, he replied: “Well, I know I should have, but I was late and was in a hurry; I know it was my fault. ”

The defendant’s testimony in the main supports the testimony of the policeman, but he testified that he was driving 20 miles per hour. There is no evidence in the record supporting the plaintiff’s testimony as to there being a street car in the vicinity, and no evidence contradicting the testimony of the policeman that there were no persons other than the plaintiff and the policeman upon the street just before or at the time of the accident.

There is the testimony of one witness, who was in a restaurant, some 10 or 12 feet back from the entrance, who said that he was looking through a front window of the restaurant, and that he could probably see the front end of the defendant’s car for a distance of 20 feet before the collision, and that the defendant’s car was traveling at a speed of about 40 to 50 miles an hour.

There was another witness, who was sitting in a restaurant, who testified that he saw the collision through the window, but that he did not observe the automobile until the time of the impact, and that the car was traveling about 40 miles an hour.

With the issues such as have been stated and the evidence as indicated, the trial judge, after defining assault and battery, charged the jury as follows: “Assault and battery is, normally, an intentional act; that is, a specific intent to commit violence to the person of another is present. Such specific intent, however, need not be present in all cases, but the intent to commit an assault and battery may be supplied by the intent of a person to violate the law, and where the act which is the violation of the law does injury to the person of another.”

And, after telling the jury that “one who intentionally violates the Ohio statute prohibiting the driving of an automobile beyond certain speed on the streets of a municipality, and in so doing runs into, strikes and injures a person rightfully passing upon or across the street, commits an assault and battery notwithstanding the injury was unintentionally inflicted, and if you find by a preponderance of the evidence in this case that the defendant did intend to drive his automobile at a rate of speed which is prohibited by the Ohio statute1 and did drive his automobile at a rate of speed which is prohibited by the Ohio statute and struck and injured the plaintiff, and if you find that the plaintiff was rightfully passing upon or across the street, then it is your duty to find for the plaintiff,” the trial judge read to the jury Section 12603, General Code, which provides that it shall be prima facie unlawful to drive an automobile at a speed greater than 20 miles an hour in the part of the municipality where the collision in this case occurred; but the court did not explain to the jury that such speed was only prima facie unlawful and that it was for the jury, after taking into consideration the traffic, surface, and width of said highway, and any other conditions then existing, to determine whether, under the conditions then existing, defendant’s automobile was being operated unlawfully.

Defendant’s automobile was being operated about 1 o’clock in the morning, when there was very little, if any, traffic, either vehicular or pedestrian, upon the street or in the vicinity of the place where the collision occurred, and there is no credible evidence in the record that the car was being driven faster than “between 20 and 25 miles an hour.”

Under such circumstances, the trial judge having read such complicated statute to the jury, it was his duty, whether requested to do so or not, to tell the jury that speed was only one of the elements to be considered in determining whether said automobile was operated in an unlawful manner and to explain fully to the jury the provisions of said statute; and his failure to do so was not a mere act of omission, and under the record in this case was clearly prejudicial.

The trial judge also read to the jury Section 12603-1, General Code, as follows: “Whoever operates a motor vehicle on the public roads or highways without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of any persons while in the lawful use of the roads or highways shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided.” (Italics ours.)

It is evident that said section had no application in this case unless the plaintiff, in crossing said street, was in the lawful use thereof, and the court failed to call to the jurors’ attention Section 6310-34, General Code, which, when taken in connection with Section 6310-37, General Code, made it unlawful for the plaintiff to cross said street between intersections, and his own testimony established that he violated said section.

If the trial judge was justified in reading to the jury Section 12603-1, General Code, and in instructing the jury to determine whether or not the defendant violated said section, it was his duty, whether requested to do so or not, to charge the jury in reference to said other section relating to the question of whether or not the plaintiff was in the lawful use of the street at the time of said collision; and again such error was not one of mere omission, and was necessarily prejudicial.

But we are of the opinion that, in view of the character of the suit brought by the plaintiff and his admitted violation of Section 6310-34, General Code, it would have been proper for the court to omit any reference to either section.

There is another question involved in this case which has been argued, and that is, whether or not the facts in this case were such as to permit a recovery under the pleadings in the case.

We recognize that in many states the negligence of a motorist may be so reckless and wanton and in such utter disregard of the rights of others as to denote a malicious intention to injure, and thus render unlawful a battery by striking a person with such automobile; but in the case at bar there is no evidence of negligence of a wanton or gross character which tends to indicate an intention to injure the plaintiff" or any one else.

Whatever the law may be in other jurisdictions, it is settled in Ohio that there is no assault and battery, in either a civil or criminal sense, where there is no intention of doing an injury, unless the party doing the injury is at the time violating a statute of the state (Fishwick v. State, 10 N. P. [N. S.], 110, 21 O. D. [N. P.], 127, affirmed in 14 C. C. [N. S.], 368, 23 C. D., 63), or is violating an ordinance (Keuhn v. City of Toledo, 37 Ohio App., 217, 174 N. E., 606).

It is true that, as a general rule, if there is a violation of such a statute, the law implies not only an intention to violate the statute but an intention to do the injury which directly results from such violation. But, where the injury arises merely from a want of due care, and there is no intention to injure or wrong any one, and the act is wrongful only because it is negligently done, and there is no violation of a statute, there is no assault and battery, and hence the injured party cannot recover damages in a simple action for assault and battery in which the party doing the act may be deprived of his right to have considered whether the negligence of the injured party proximately contributed to his injury.

In the case at bar, as has been said, there is no basis whatever for a claim that the defendant actually intended to injure plaintiff, or that he acted so wantonly as to suggest an intention to injure, and a careful consideration of the record leads us to the conclusion that there is no credible evidence of a violation of a statute of the state by the defendant, and therefore there was no assault and battery; and, in the form of action adopted in this case, there being no right to recover unless there was an assault and battery, the court should have rendered a judgment in favor of the defendant, as the court was asked to do during the trial.

But, if it can be said that there is credible evidence of a violation of a state statute by the defendant, the record also shows conclusively that the plaintiff was himself violating a state statute in crossing the street between intersections (Section 6310-34, General Code), for which violation the plaintiff was subject to a fine (Section 6310-37, General Code); and such violation continued and was contemporaneous with defendant’s violation of a statute and was a proximate cause of what happened.

If, as above stated, we assume that there is credible evidence of the violation of a state statute by the defendant, we nevertheless have, by the great weight of the credible evidence, this situation presented: The defendant and the plaintiff were each approaching a certain point in the street in a manner which violated the statutes of the state, and, when they met at said point, the injury occurred. How can it be said, so far as liability in a civil action for damages is concerned, that either committed an assault and battery on the other?

There was no actual , intent to injure, as in the case of a fight by consent; the injury was in fact accidental; and while, in a criminal action to punish an offense against the state, the' law may properly imply an intention to injure from an intentional violation of a speed law, it is a positive injustice to hold, in an action for damages, that, because of the form in which such action is brought, such implied intention is conclusive on the question of intention to injure, as was charged in this case, when all the evidence, including that of plaintiff* establishes that there was no such intention and that in fact the injury was accidental.

The plaintiff, by bringing his action in the usual and proper form, could have had the full benefit of any implication of negligence on the part of the defendant that would arise if the defendant had violated the speed law, but it is inconceivable that the law will permit the plaintiff, by the form in which he brings his action, to have such benefit and at the same time prevent the defendant from having the benefit of the defense of contributory negligence of the plaintiff which arises by reason of his violation of the statutes of the state, as shown by the evidence and admitted by him.

But, in disposing of the question as to whether final judgment should be rendered in favor of the defendant in this case, it is only necessary to repeat, by way of recapitulation, that, while the policeman estimated the speed of defendant’s automobile at “between 20 and 25 miles an hour”, there is no credible evidence that the speed was greater than that, and under the circumstances shown, taking into account the place where the accident happened, the width of the road, the time of night, and the absence of traffic and of persons on the street or in the vicinity, and all of the conditions then existing, a finding other than that the automobile was being driven lawfully would be a conclusion contrary to that which reasonable minds could reasonably come to; and, there being no unlawful act, an intention to injure the plaintiff does not arise by implication, and, there being no evidence whatever of an actual intention, there is no proof of an unlawful assault and battery, and therefore plaintiff failed completely to offer evidence tending to prove the very basis of his claim as set forth in his petition.

The judgment against the defendant is contrary to law, and should have been in his favor.

For the errors pointed out, the judgment is reversed, and final jucj^ment is entered for the defendant.

Judgment reversed mid judgment for defendant.

Funk and Stevens, JJ., concur in judgment.  