
    Cousins v. Booksbaum.
    (Decided March 22, 1935.)
    
      Messrs. Henhel & Gongwer, for plaintiff in error.
    
      Mr. Joseph A. Bayer, for defendant in error.
   Lemert, J.

This is an action for loss of services, companionship, and for medical and hospital expenses incurred by plaintiff, Jacob N. Cousins, on account of personal injuries sustained by his wife, as a result of defendant’s automobile, in which plaintiff’s wife was riding, going into a ditch and upsetting.

This is one of the cases covered by the provisions of Section 6308-6, General Code, commonly called “The Guest Statute.”

The plaintiff brought an action against the defendant, alleging that he and his wife were guests in defendant’s automobile, which was being driven on United States Route 30 N. On November 2, 1933, when they reached a point about six miles west of Mansfield, Ohio, there was a load of hay ahead of defendant’s automobile; defendant, without warning, swerved his automobile to the left, and then to the right, and drove it into a ditch, injuring plaintiff’s wife. Plaintiff asks damages in the sum of four thousand dollars.

In his amended petition plaintiff alleges three grounds of negligence on the part of defendant:

1. In driving his automobile at a speed greater than was reasonable and proper having due regard to the traffic, surface and width of the road and of any other conditions then existing, to wit, in excess' of sixty miles per hour.

2. In driving his automobile at a greater speed than would permit him to bring it to a stop within the assured clear distance ahead.

3. In driving his automobile on said public highway without due regard for the safety and rights of travellers and occupants of all other vehicles and so as to endanger life, limb or property of any persons while in the lawful use of the highway.

To this amended petition the defendant filed an answer, consisting of two defenses, as follows:

Í. Defendant admitted that on said date plaintiff and his wife were riding in the back seat of his automobile, which he was driving in a westerly direction on United States Route 30 N; that when he reached a point about six miles west of Mansfield there was a hay wagon in the road ahead and that in an effort to avoid hitting the same defendant’s car ran into the ditch and upset. Defendant denied all other allegations of the amended petition.

2. Defendant alleged that the accident, and any resulting damages, were due solely and proximately to the negligence of one John Bicksler, who was driving said wagon on the highway, with a buggy attached thereto, without displaying a light thereon.

The trial resulted in a verdict for the plaintiff in the sum of $2,250. Defendant filed a motion for new trial, which was overruled, and judgment was entered upon the verdict. Defendant now prosecutes error from said judgment to this court to reverse and set aside said judgment. The errors complained of are as follows:

1. In the overruling of the motion of defendant for judgment on the pleadings, and opening statement of counsel.

2. In the overruling of the motions of defendant at the close of plaintiff’s evidence and at the close of all the evidence to arrest the case from the jury and direct a verdict for the defendant.

3. In the court’s charge to the jury.

Section 6308-6, General Code, provides:

“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.”

We have carefully examined the whole of the record in this case, and upon the claimed or assigned grounds of error 1 and 2 we find the same to be without merit, and no error therein.

On the third claimed ground of error, to wit, the charge of the court to the jury, we find from the record that the testimony in this case shows that shortly prior to the accident the driver of the automobile discovered the load of hay in the highway, immediately in front of him, in the rear of which he claims there was a buggy, unlighted; and with regard to this the court charged the jury that if, after the discovery of the objects in the highway, and if these objects in the highway constituted a peril to any one, the danger of which the defendant had knowledge, then it would be his duty to exercise ordinary care.

We are of the opinion that there was no question of ordinary care in this case, and failure to use ordinary care would not make the defendant liable. Recovery can be had only if and when wanton misconduct on the part of the defendant is proven, and wanton misconduct is proven only when the jury concludes, by a preponderance of the evidence, that the defendant failed to exercise any care.

The trial court charged the jury as follows:

“You are further charged that if on account of the absence of lights on the vehicle an emergency existed at the time, and the defendant was not guilty of wanton misconduct at the time he discovered the load of hay and buggy in the highway, then it became his duty to exercise ordinary care, but you are cautioned that if at the time of such discovery a condition creating an emergency, if one existed and the defendant was not guilty of wanton misconduct, then he would not be chargeable with failure to use ordinary care to avoid collision and injury if he used that degree of care which appeared to him at the time, under all the circumstances, to be such as would avoid an accident and injury, even though after the accident it might be discovered that he was in error in his judgment. In other words, after he had knowledge of the peril, did he use the degree of care which the exigency of the case and the emergency of the case required. ’

We believe the above charge to be erroneous, and prejudicially so. It will be noted that the trial court in charging as above says: “assuming the defendant was not guilty of wanton misconduct, it would then be his duty to exercise ordinary care.”

In the instant case, if the defendant was not guilty of wanton misconduct, the court should have said: “there is no liability against the defendant.”

Again, the court, even conceding in his statement no wanton misconduct, asserts the defendant’s duty as that of ordinary care, leaving the impression that all that is necessary for the plaintiff is to prove a want of ordinary care, instead of entire absence of care.

It will be noted that the court then proceeded, as quoted above, to charge on the duty of the defendant in the event an emergency existed. Here the court presents the third rule of conduct to the jury by which to judge defendant’s acts. The court ends that phase of the charge by saying:

“In other words, after he had knowledge of the peril, did he use the degree of care which the exigency of the case and the emergency of the case required?”

It will be noted, on a careful reading and examination of the part of the charge just quoted, that the court did not summarize on what he had said immediately before this part of the charge was given. We believe this is erroneous and the court should have said to the jury, “after having a knowledge of the danger, did he use any care whatever to avoid the same?”

The subjects of negligence and wilful or wanton misconduct have for many years been in a somewhat confused state in Ohio, and the terms have been used rather loosely and inaccurately. However, in the case of Reserve Trucking Co. v. Fairchild, 128 Ohio St., 519, 191 N. E., 745, the Supreme Court somewhat clarified the situation, and defined the terms in the syllabus as follows:

“1. The term ‘wilful tort’ implies intent or purpose to injure. * * *

“2. The term ‘wanton negligence’ implies the failure to exercise any care for the safety of those to whom a duty of care is owing when the wrongdoer has knowledge of the great probability of harm to such persons which the exercise of care might avert and exhibits a reckless disregard of consequences.” (Italics ours.)

And the court further held, in the same case, that the “terms 'wilful’ and 'wanton’ are not synonymous.”

The Supreme Court of Ohio later approved this holding in the case of Denzer v. Terpstra, 129 Ohio St., 1, 193 N. E., 647.

The court further holds in the Terpstra case that it is prejudicially erroneous for a trial court to charge a jury on the subject of wilful tort when said charge is unsupported by the evidence, and in Reserve Trucking Co. v. Fairchild, the Supreme Court of Ohio held that it is error to charge a jury that in order to establish wantonness it is not necessary to show an entire want of care.

So that the difficulty will not be in the uncertainty of the meaning of these terms just quoted, but in the failure to properly apply them to the facts in the trial of cases under the so-called “Guest Statute.”

If the trial courts submit cases to the jury in which only negligence is pleaded, the “Guest Statute” will be nullified, and its provisions rendered meaningless.

The Supreme Court of Ohio definitely held that to establish wantonness it is necessary to show an entire absence of care, but the trial court in the language used in the instant case, as hereinbefore quoted, clearly leaves the impression that liability would follow if the rule of ordinary care were followed. In other words, the court says:

“Under the situation outlined that it would then be defendant’s duty to exercise ordinary care.” The impression would follow from this language that a failure to comply with such duty would result in liability. This we believe to be prejudicial error.

So it necessarily follows that for the reasons herein-before given in errors in the charge of the court, this cause is reversed and remanded to the court below for further proceedings according to law.

Judgment reversed and cause remanded.

Montgomery and Sherick, JJ., concur.  