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SLONIGER v. ENTERLINE. (06/29/60)

June 29, 1960

SLONIGER, APPELLANT,
v.
ENTERLINE.



Appeal, No. 120, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, April T., 1955B, No. 1718, in case of Charles A. Sloniger, administrator of estate of Richard Laverne Sloniger, deceased v. Elder Enterline. Judgment affirmed.

COUNSEL

Frank J. Kernan, with him P. J. McArdle, for appellant.

Samuel W. Pringle, with him Pringle, Bredin & Martin, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 400 Pa. Page 458]

OPINION BY MR. JUSTICE BOK.

[ 400 Pa. Page ]

As this automobile accident happened in Ohio and the plaintiff's decedent was the defendant driver's guest, the Ohio Guest Statute applies: General Code, § 6308-6, Page's Ohio Revised Code, Ann., Title 45, Motor Vehicles § 4515.02. This act requires of a non-paying

[ 400 Pa. Page 459]

    guest, as here, proof of wilful or wanton misconduct by defendant before recovery is allowed: Mike v. Lian, 322 Pa. 353 (1936), 185 A. 775; Mackey v. Robertson, 328 Pa. 504 (1938), 195 A. 870; Rodney v. Staman, 371 Pa. 1 (1952), 89 A.2d 313.

The jury found for the defendant, the court below refused a new trial, and plaintiff has appealed.

It is possible, since juries don't always explain their actions, that this one found no wilful or wanton misconduct, and this would dispose of the case unless there was error. As for what constitutes wilful or wanton misconduct, we said in Mike, quoting from Reserve Trucking Co. v. Fairchild, 128 Ohio St. 519 (1934), 191 NE 745: "'Wilful misconduct... implies the element of intent or purpose to injure. "Wanton negligence" on the other hand implies the failure to exercise any care toward those to whom a duty of care is owing when the probability that harm will result from such failure is great and such probability is actually known to the defendant.'"

The jury might well have felt that the evidence of defendant's intoxication and of dozing at the wheel did not measure up to these stringent standards. Of interest on the point that far worse intoxication has been held in Ohio not to amount to wilful and wanton misconduct, see McCoy v. Faulkenberg, 53 Ohio ...


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