Opinion
No. 29644
Decided March 15, 1944.
Negligence — Motor vehicles — Guest statute — Wanton and wilful misconduct a jury question, when — Charge to jury — Special instruction before argument — Objection not interposed to form — Special interrogatory, submitted after charge to jury, may be rejected — Interrogatories to settle ultimate and determinative or probative facts — Section 11420-17, General Code — Special interrogatory, restricted as to time, may be refused.
1. Under a petition charging the defendant with "wanton and wilful misconduct" in the operation of his automobile, the question whether he was guilty of such misconduct was properly left to the jury where the evidence offered by plaintiff tended to prove that, at and some time before a collision, the defendant was driving his automobile equipped with defective tires at a speed of between 60 and 70 miles per hour over a road having a number of curves and being rough in places; that before the collision he had driven back and forth across the road, to the discomfort of his passengers and against their protests; that he passed one or more vehicles in a reckless manner; and that in descending a hill he increased his speed, struck another vehicle and collided with a post at the edge of the roadway, causing personal injuries to the plaintiff, a guest-passenger.
2. It is not prejudicial error to give a special instruction before argument at the request of the plaintiff, which, although in the abstract, contains a correct proposition of law, pertinent to the case, where the defendant interposes no objection to the form or the substance of such instruction.
3. A special interrogatory offered under Section 11420-17, General Code, but not suggested or tendered until after the general charge when the jury is about to retire for deliberation upon its verdict, may be rejected by the trial court in the exercise of a sound discretion.
4. Section 11420-17, General Code, contemplates interrogatories the answers to which will establish ultimate and determinative facts, or interrogatories which will elicit probative facts from which ultimate and determinative facts may be inferred as a matter of law.
5. A special interrogatory which is so restricted as to time and events that an answer thereto favorable to the party presenting it would not be inconsistent with a general verdict for his adversary, may be refused.
APPEAL from the Court of Appeals of Butler county.
Plaintiff, a minor, brought suit against the defendant, also a minor, in the Court of Common Pleas of Butler county, claiming damages for serious personal injuries sustained when an automobile in which he was riding as a guest-passenger with two other boys and driven by the defendant, collided with a wooden post adjacent to the highway. Both the plaintiff and defendant were in their late teens.
The collision and injuries occurred on May 11, 1941, on state route No. 725, about two miles west of the village of Germantown, Ohio. The petition charged defendant with driving at a speed of 65 miles per hour and swerving the automobile from one side of the road to the other; and alleged protests, on the part of the passengers, the presence of other automobiles on the road during the continuance of the kind of driving described, the striking of another automobile, the collision with a post and ensuing injuries to plaintiff. "Wanton and wilful misconduct" was charged in terms.
No motion or demurrer was interposed to the petition, and defendant, by his guardian ad litem, filed an answer in the form of a general denial.
Under the petition, plaintiff offered evidence tending to prove that the defendant, at and some time before the collision, was operating his car equipped with defective tires, at a speed of between 60 and 70 miles per hour over a road having a number of curves and being rough in places; that before the mishap he had been driving back and forth across the road in time to "swing" music coming from the radio in the car; that by the manner of defendant's driving the passengers were thrown about in the machine, and they remonstrated without result; that there were several other motor vehicles on the road near the time of the collision; that defendant passed one or more of them in a reckless manner; that in descending a hill he increased his speed, struck an automobile designated as the "Michael car" proceeding in the same direction as he was, swerved his vehicle into a sand pile at the side of the road and from there ran into a post supporting a guard cable near the edge of the highway.
Defendant's automobile was practically demolished and plaintiff's left leg was so badly crushed and mangled as to require amputation below the knee Evidence of other injuries, particularly a head injury, was also introduced by plaintiff.
At the close of plaintiff's case in chief, at the close of all the evidence, and again during argument of counsel for plaintiff, defendant moved for a directed verdict in his favor, which motions were overruled.
Before argument, at plaintiff's request, the following special instruction was given:
"The court charges you that 'wantonness can never be predicated upon speed alone; but when the concomitant facts show an unusually dangerous situation and a consciousness on the part of the driver that his conduct will in common probability result in injury to another of whose dangerous position he is aware, and he drives on without any care whatever, and without slackening his speed, in utter heedlessness of the other person's jeopardy, speed plus such unusually dangerous surroundings and knowing disregard of another's safety may amount to wantonness.' The court tells you that is the law."
Defendant presented six special instructions, all of which were given. They covered thoroughly the differentiation between negligence on the one hand and wilful or wanton misconduct on the other, and advised the jury as to what must be found by it in order to render a verdict against the defendant.
Neither in the typewritten bill of exceptions nor in the printed record and supplemental record filed in this court does it appear that either party registered any objection to the special instructions or to the general charge of the court. Nor did either party request the court for any additions to, amplifications of, or changes in, the general charge.
At the conclusion of the general charge and just before the retirement of the jury to deliberate on its verdict, counsel for the defendant asked the court to submit to the jury an interrogatory to be answered in the event it returned a general verdict. Such interrogatory which was in writing, reads as follows:
"Was the defendant, at or immediately before the contact with the Michael car, guilty of conduct manifesting a perversity of mind?"
The court declined to submit the interrogatory and gave as its reasons that it was not tendered seasonably and that it was not a proper question. Defendant excepted to the ruling.
A verdict of $10,000 was returned for the plaintiff, and after overruling defendant's motions for a new trial and for judgment notwithstanding the verdict, the court rendered judgment on the verdict.
An appeal to the Court of Appeals by the defendant resulted in a reversal of the judgment below, on two grounds: (1) Error in refusing to give the interrogatory requested, and (2) error in giving plaintiff's special instruction, because it assumed the existence of facts and was a mere abstract statement of law.
The case is now here pursuant to the certification of its record by the Court of Appeals, upon this court's allowance of a motion therefor.
Mr. Clinton D. Boyd, for appellant.
Mr. C.W. Elliott, for appellee.
Of course the plaintiff is asking for a reversal of the judgment of the Court of Appeals and an affirmance of that of the trial court. The defendant, on a cross assignment of errors, is asking for final judgment in his favor, for the principal reason that neither the petition nor the evidence discloses wanton or wilful misconduct on the part of the defendant at the time of the collision and, in the event final judgment is denied, an affirmance of the judgment of the Court of Appeals.
No motion or demurrer was filed to the petition, but its insufficiency was unsuccessfully challenged at the close of plaintiff's opening statement to the jury and again at the conclusion of plaintiff's case in chief. Giving the petition the liberal construction enjoined by Section 11345, General Code, we think it contains allegations sufficient to support the claim of wilful or wanton misconduct made against the defendant, under Section 6308-6, General Code. A pleading must be construed as an entirety, and effect given to every well-pleaded allegation. Upon review every pleading should be considered as aided by the entire record. Hadfield-Penfield Steel Co. v. Sheller, 108 Ohio St. 106, 112, 141 N.E. 899, 91. See Parletto v. Industrial Commission, 140 Ohio St. 127, 159, 42 N.E.2d 153, 155.
It is also our opinion that competent evidence was introduced from which the jury could reasonably have found that the behavior of the defendant in driving his automobile constituted at least wanton misconduct which continued until the unfortunate impact with the post. See Jenkins v. Sharp, 140 Ohio St. 80, 42 N.E.2d 755.
The special instruction submitted to the jury at the instance of plaintiff has the objectionable feature of stating an abstract proposition of law and might have been refused by the trial court sua sponte for that reason. Such instruction, however, was predicated upon language used in the case of Morrow v. Hume, Admx., 131 Ohio St. 319, 324, 3 N.E.2d 39, 41, and repeated in the later cases of Akers v. Stirn, 136 Ohio St. 245, 249, 25 N.E.2d 286, 289, and Jenkins v. Sharp, 140 Ohio St. 80, 83, 42 N.E.2d 755, 757. It is a correct general propostion of law pertaining to wanton misconduct, and is not of such a character in the form presented that the trial court committed reversible error in giving it.
Moreover, under subdivision 5 of Section 11420-1, General Code, special instructions in writing are presented to the court at the conclusion of the evidence in a case. If a party believes a tendered instruction does not contain a correct or applicable statement of the law, he should note an objection in order to predicate error upon the giving of such instruction. Section 11560, General Code. As has already been indicated, counsel for the defendant did not object to, or in any way express disapproval of, the special instruction proposed by the plaintiff.
We have examined the general charge. In our opinion, it contains no error of commission of a serious or prejudicial nature. When the reading of such charge was completed, the court asked: "Is there anything else, gentlemen?" To which inquiry no response was made.
The remaining question to be considered has to do with the refusal of the trial court to submit to the jury the interrogatory offered by the defendant immediately before the jury retired for its deliberations.
Section 11420-17, General Code, provides in part:
When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon."
It was held in the case of Toledo Ohio Central Ry. Co. v. Beard, Admr., 20 C. C., 681, 11 C. D., 406, affirmed without opinion in 59 Ohio St. 615, 54 N.E. 1098, that proper requests for special findings of fact presented at any time before the jury retires must be submitted. This decision stands almost alone, if not entirely so, and is opposed to the decided weight of authority. Another Circuit Court appears to have entertained a somewhat different view in P., C., C. St. L. Ry. Co. v. Kelly, 12 C. C., 341, 346, 5 C. D., 662, 665, affirmed without opinion in 53 Ohio St. 667, 44 N.E. 1145.
Section 11420-17, General Code, was adopted from the Indiana statute on the same subject. 39 Ohio Jurisprudence, 1146, Section 416. In the case of Kopelke v. Kopelke, 112 Ind. 435, 443, 13 N.E. 695, 699, the court said:
"Our code provides that the trial court, 'in all cases, when requested by either party, shall instruct them,' (the jury) 'if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing.' * * *
"It will be seen from these provisions that the code, while it imperatively requires the court, at the request of either party, to instruct the jury, if they render a general verdict, to find specially upon particular questions of fact stated in writing, does not prescribe the time when such requests shall be made, or when such written questions of fact must be presented to the court. Manifestly, these matters are left by the code, and properly so, we think, to the sound discretion of the trial court."
Where there is no provision of law fixing the time when special interrogatories are to be tendered, interrogatories not suggested or tendered until the jury is about to enter upon its deliberations are so late that they may properly be refused. Union Rd., Transfer Stock-Yard Co. v. Moore, 80 Ind. 458; Webb v. Boulanger, 116 Kan. 711, 229 P. 754; Baltimore Traction Co. v. Appel, 80 Md. 603, 31 A. 964; Neeley v. Stratton, 185 Mich. 409, 151 N.W. 1045; Peninsular Land Transp. Mfg. Co. v. Franklin Ins. Co., 35 W. Va. 666, 14 S.E. 237; 64 Corpus Juris, 1142, Section 935.
Passing from the question as to the timeliness of counsel's request for the submission of the special interrogatory, was it otherwise wrong to refuse it?
While a "disposition to perversity" is an element of wanton misconduct ( Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843), wantonness also involves an entire absence of care for the safety of others and an indifference to consequences. Reserve serve Trucking Co. v. Fairchild, 128 Ohio St. 519, 191 N.E. 745.
If the interrogatory had been submitted and the jury had replied in the negative, such answer would have amounted only to a declaration that defendant was not guilty of conduct manifesting a perversity of mind at or immediately before the contact with the Michael car. The interrogatory as framed confined defendant's "perversity of mind" to a very short space of time. Left out of the equation was the general attitude of the defendant persistently displayed throughout the ill fated journey, which plaintiff's evidence tended to establish and which was claimed to have been a factor directly contributing to the disastrous collision with the post.
This court held in the case of Woodruff v. Paschen, 105 Ohio St. 396, 137 N.E. 867, that special interrogatories which are so restricted as to time and events that answers thereto would not test the general verdict, may be rejected.
Section 11420-17, General Code, contemplates interrogatories the replies to which will establish ultimate and determinative facts, or interrogatories which will elicit probative facts from which ultimate and determinative facts may be inferred as a matter of law. Schweinfurth, Admr., v. C., C., C. St. L. Ry. Co., 60 Ohio St. 215, 54 N.E. 89; Gale v. Priddy, 66 Ohio St. 400, 64 N.E. 437; 39 Ohio Jurisprudence, 1156, Section 426.
In our opinion a negative answer to the interrogatory proposed would not have been irreconcilable with a general verdict for the plaintiff, and the rule is well settled that a refusal to submit special interrogatories, the responses to which would not control the result or affect the general verdict, is not error.
Although we do not go so far as to hold that it would have been improper to have given the jury the requested interrogatory ( Gale v. Priddy, 66 Ohio St. 400, 405, 64 N.E. 437, 438), we do say that the refusal to do so was not reversible error under the circumstances.
It follows that the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, BELL, WILLIAMS and TURNER, JJ., concur.