Opinion
No. 26664
Decided December 8, 1937.
Judicial notice — Foreign statutes or court constructions to be pleaded and proved — Subjecting insurer to satisfy judgment recovered against insured — Section 9510-4, General Code — Pleading — Cause of action stated for injuries accidentally sustained, within policy — Judgment recovered under Michigan guest-passenger law for wilful and wanton misconduct.
1. Courts of this state do not take judicial notice of the statutes of a sister state or their construction by the courts of that state. The laws of a sister state as well as their construction by the courts of such state are matters of fact which must be pleaded and proved.
2. A supplemental petition which, filed under the provisions of Section 9510-4, General Code, seeking to compel an insurance company to satisfy a judgment against an assured under a policy which covered judgments for damages rendered against the assured for injuries accidentally sustained, alleged that the plaintiff recovered a judgment under the guest-passenger law of Michigan for wilful and wanton misconduct, but defines such misconduct under the law of Michigan as one where the defendant had knowledge of a situation requiring the exercise of ordinary care; that he had the ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand; and that he omitted to use such care and diligence to avert threatened danger when to the ordinary mind it must have been apparent that the result was likely to prove disastrous to another, states a cause of action.
CERTIFIED by the Court of Appeals of Lucas county.
This was a proceeding instituted in the Common Pleas Court of Lucas county, under the provisions of Section 9510-4, General Code, wherein the plaintiff, appellee, Helen Herrell, sought to recover from the defendant, appellant, The Yorkshire Indemnity Company of New York, on a judgment rendered against an insured. While an amendment to this section was adopted effective October 4, 1933, its effect so far as this case is concerned is the same as when the accident occurred on May 15, 1932.
The matter was heard upon a demurrer to the second amended supplemental petition of the plaintiff. In this petition she alleged that on May 15, 1932, while riding as a guest-passenger in an automobile owned and operated by Clarence Hickok, she received certain bodily injuries while in the state of Michigan, and that subsequently she instituted an action in the Court of Common Pleas of Lucas county, Ohio.
Plaintiff said that on the date of the accident, under the provisions of Act No. 302, Public Acts, 1915, of the State of Michigan as amended by Act No. 287, Public Acts, 1925; Act No. 56, Public Acts, 1927, and Act No. 19, Public Acts, 1929, said statute as amended being also known as Section 4648 Compiled Laws of Michigan, 1929, it was "provided that no person transported by the owner or operator of a motor vehicle as a guest without payment" would have a cause of action for damages against the owner or operator for injuries "unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator" which contributed to the aforesaid injury. (Italics ours.)
Plaintiff alleged that at the trial of the action the court charged that in determining whether the defendant, Clarence Hickok, was guilty of wilful and wanton misconduct the jury must apply the following test: "Now, the Supreme Court of Michigan has laid down certain decisions in the determination of that question, and therefore I say to you that to determine that question you must find that the following elements existed: First, that the defendant had knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; secondly, that he had ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand; and third, that he omitted to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another."
A verdict was rendered in favor of the plaintiff against Hickok in the sum of $25,000 which was subsequently reduced by the court upon hearing of a motion for a new trial to $23,520. A special interrogatory was propounded and answered by the jury as follows:
Interrogatory: "Was the accident in which plaintiff was injured caused by wilful and wanton misconduct on the part of the defendant, Clarence Hickok, in the operation of his automobile; if so, state of what that wilful and wanton misconduct consisted?"
Answer: "We find the accident was caused by the wilful and wanton misconduct of the defendant which was evidenced by a rate of speed greater than was warranted by the condition of the traffic, by failing to slow down after experiencing trouble at the first curve and entering the second curve at a speed as great or greater than that speed at which the first curve was taken."
The motion for a new trial was overruled on June 17, 1935, and subsequently, after the judgment was affirmed by the Court of Appeals, this court overruled a motion directing that court to certify its record.
Plaintiff then stated that on May 15, 1932, the date of her injuries, there was in full force and effect an insurance policy issued by the defendant, The Yorkshire Indemnity Company of New York, under the terms of which the defendant, Clarence Hickok, was insured against liability for loss or damage on account of bodily injuries accidentally sustained by any person or persons resulting from the ownership or operation, within the limits of the continental United States of America or the Dominion of Canada, of the automobile Clarence Hickok was driving. This policy was attached to and was considered part of the petition by the courts.
The policy provided for payment for bodily injuries to one person not to exceed $20,000. This supplemental petition was filed under the provisions of Section 9510-4, General Code, by the plaintiff as a judgment creditor who sought to have the insurance money provided for in the contract up to $20,000 applied to the satisfaction of her judgment against Hickok, the assured.
On February 11, 1937, a demurrer filed by the defendant, The Yorkshire Indemnity Company, to the second amended supplemental petition was sustained, and plaintiff not desiring to plead further, the petition was dismissed and judgment was entered for the defendant, The Yorkshire Indemnity Company of New York.
Upon appeal, the Court of Appeals reversed the judgment of the Court of Common Pleas and remanded the cause for further proceedings in accordance with law. That court found that its judgment was in conflict with the judgment of the Court of Appeals of the Seventh Appellate District sitting in Mahoning county in the case of Rothman et al. v. Metropolitan Casualty Ins. Co., decided November 25, 1936 (See 134 Ohio St. 241), and certified its record to this court for review.
Messrs. Yager, Bebout Stecher, for appellee.
Messrs. Marshall, Melhorn, Davies, Wall Block, for appellant.
The judgment in the Court of Common Pleas in favor of the appellant was rendered after a demurrer was sustained to the second amended supplemental petition. In reviewing the judgment of reversal by the Court of Appeals, this court can examine only the allegations of the second amended supplemental petition to determine whether the facts therein stated constitute a cause of action against the appellant, The Yorkshire Indemnity Company.
If these allegations disclose that the judgment rendered in favor of the appellee, Helen Herrell, was due to bodily injuries, accidentally sustained, caused by the operation of the automobile by Clarence Hickok, then the judgment of the Court of Appeals should be affirmed. If they do not so show, the judgment of that court should be reversed and that of the Court of Common Pleas affirmed.
Hickok was insured by the appellant, The Yorkshire Indemnity Company of New York, against liability for damages assessed against him for certain injuries be might cause in the operation of his automobile. The pertinent terms of the policy issued to him provided: "Section A. Liability for Bodily Injuries or Death Provided specific premium charge is made in Section A of the Schedule of Statements and Warranties, this Company agrees:
"To pay, on behalf of the Assured, subject to the limits of liability stated therein, all sums which the Assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons during the policy period."
There is no dispute that the appellee, Helen Herrell, received bodily injuries by reason of the operation of the automobile by Hickok and for which a judgment was rendered against him. The liability of the insurance company depends upon whether those injuries were accidentally sustained, and that is our sole inquiry.
The matter arising upon a demurrer, all facts well pleaded in the second amended supplemental petition must be taken as true. The statutes pertaining to liability for guest-passengers in the state of Michigan, as well as their construction by the courts of that state, are set forth in this petition. This court does not take judicial notice of the statutes of a sister state or their construction by the courts of that state. The laws of another state must be pleaded and proved. They are to be considered as matters of fact. Ingraham v. Hart, 11 Ohio, 255; Niagara County Bank v. Baker, 15 Ohio St. 68; Whalen's Executor v. Kinsley's Administrator, 26 Ohio St. 131; Evans v. Reynolds, 32 Ohio St. 163; Larwell v. Hanover Savings Fund Society, 40 Ohio St. 274; Williams v. Finlay, 40 Ohio St. 342; Erie Rd. Co. v. Welsh, 89 Ohio St. 81, 105 N.E. 189, affirmed 242 U.S. 303, 61 L.Ed., 319, 37 S.Ct., 116; Louisville Nashville Rd. Co. v. Greene, Admx., 113 Ohio St. 546, 149 N.E. 876.
Upon the trial, according to the petition, the jury found that the injuries to appellee were caused by reason of the wilful and wanton misconduct of the assured. Appellant contends, therefore, that injuries which are the result of wilful and wanton misconduct are not accidentally sustained.
In Ohio, the courts have attempted to make a distinction between misconduct which is wilful and that which is wanton. Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519, 191 N.E. 745; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843. Looking solely at the averments in the petition, apparently Michigan did not make such a distinction. It is unnecessary in this case to determine whether an injury, either wantonly or wilfully inflicted under the laws of Ohio, would be considered one accidentally sustained. The judgment against the assured in this case was awarded under the guest-passenger law of the state of Michigan.
The petition states that under the laws of Michigan, in order to find the assured caused the injury by his wilful and wanton misconduct, it was necessary to find that he had knowledge of a situation requiring the exercise of ordinary care; that he had ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand; and that he omitted to use such care and diligence to avert the threatened danger when to the ordinary mind, it must have been apparent that the result was likely to prove disastrous to another.
At the first trial of this cause, a verdict was directed against the appellee. On error, that judgment was reversed. In the opinion of reversal, the Court of Appeals, after a review of the pertinent cases, stated that gross negligence, wilful and wanton misconduct under the laws of Michigan amounted to merely "lifting the automobile owner's fault above ordinary negligence." Herrell v. Hickok, 49 Ohio App. 347, 197 N.E. 241. See also De Shetler v. Kordt, 43 Ohio App. 236, 183 N.E. 85.
Clearly the test as to gross negligence, wilful and wanton misconduct, alleged to prevail in Michigan, would not be the test for such character of claims in this state. In fact, that test is similar and akin to the one used in cases involving last clear chance in this state. See Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, 183 N.E. 873. Gross negligence, wilful and wanton misconduct as set forth under the laws of Michigan, are nothing more than ordinary negligence with vituperative epithets attached. It is merely "lifting the automobile owner's fault above ordinary negligence."
Whether the allegations in the second amended supplemental petition did properly set out the law of Michigan or define the laws of Michigan in regard to liability to guest-passengers we are not called upon at this time to decide. If they do not, the appellant indemnity company can controvert the relevant statements by answer. The questions cannot be raised by demurrer because the law of a sister state is a factual matter.
Whether we define an accidental injury as one which comes to the injured party through external force not of his own choice or whether we hold it to be an unexpected happening inflicted without design or intent, it must be obvious that in either event the statements setting forth the finding of the jury and of the instruction as to the law of Michigan in this case do allege that the injury was accidentally sustained. See Commonwealth Casualty Co. v. Headers, 118 Ohio St. 429, 161 N.E. 278; Georgia Casualty Co. v. Mills, 156 Miss. 853, 127 So. 555; Messersmith v. American Fidelity Co., 232 N.Y., 161, 133 N.E. 432, 73 A. L. R., 414.
Taking the view of the case that only the allegations of the petition are to be considered and that the law of a sister state is a matter of fact, it is unnecessary for the court to decide whether injuries caused by wilful or wanton misconduct would be covered by the policy in a case arising in Ohio.
The demurrer to the second amended supplemental petition should have been overruled, and for that reason the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.