dissenting. Although there may be serious doubts that the parenthood of the defendant should be a defense to a tort action brought by the defendant’s minor child for injuries inflicted which bear no reasonable relation to disciplinary activity, I will confine this dissent to a more serious error — the infringement on the constitutional right of trial by jury.
The majority opinion begins: “Neither the allegations of the petition nor the representations of prospective proof contained in the opening statement by plaintiff’s counsel, considered together in a light most favorable to the plaintiff, make this case one of willful or malicious tort. ” (Emphasis added.)
In contrast, the amended petition states “that the whole, sole and proximate cause of the accident and the resulting injuries were due to the negligence and willful misconduct of the defendant while defendant was under the influence of intoxi-*121eating beverages in driving into said driveway at a great rate of speed * * V’
In similar contrast, the opening statement of plaintiff’s counsel charged that the defendant “wantonly and willfully failed to stop his car * *
Where an unemaneipated minor has attempted to recover from a parent on the basis of willful and wanton misconduct and has alleged that the parent was under the influence of alcohol and was driving at an excessive speed when the accident occurred, our sister states have held that a cause of action was stated and that defendant was not entitled to judgment on the pleadings. Leggett v. Leggett (1961), 216 N. Y. Supp. 2d 781; Wright v. Wright (1952), 85 Ga. App. 721, 70 S. E. 2d 152; Cowgill v. Boock, Admr. (1950), 189 Ore. 282, 218 P. 2d 445. In those cases, the allegations of speed and alcohol were sufficient to require the trier of facts to determine whether there was willful or wanton misconduct and an abandonment of the parental relationship.
However, a majority of the court chose to decide those issues on their own before any evidence was actually presented. Lite the issue of negligence, the issue of willful misconduct is one for the jury to determine in light of the circumstances of each case. In the ease at bar, an honest judgment must await the testimony of the witnesses and the presentation of other evidence. How drunk was the defendant1? How fast was he speeding? How disabled a driver was he? How likely was it for a child to rush out into the driveway at that time of day?
The answers to these questions are decisive of this case. The answers have not been given. Nevertheless, the court says it is certain that no willful tort could be proved.
As the basis for the premature disposition of this case, the court cites Cornell v. Morrison (1912), 87 Ohio St. 215. However, the first paragraph of the syllabus of that case reads as follows:
“A motion by the defendant to arrest a cause from the jury and enter a judgment of dismissal of plaintiff’s petition and for costs, made after the opening statement of counsel for the plaintiff and before the introduction of any evidence, is an admission by the defendant, for the purpose of the motion, *122of the truth of all the statements that the plaintiff proposes to establish by the evidence, leaving no disputed question of fact to be determined by the jury, the only remaining question being one of law for the court.” (Emphasis added.)
If the defendant must admit all propositions of the plaintiff, such as that defendant “wantonly and willfully failed to stop bis car,” the court must be choosing among the allegations to form a basis for decision. It is thus usurping the function of a jury. Cf. Archer v. City of Port Clinton (1966), 6 Ohio St. 2d 74. (Herbert, J., dissenting.)
Moreover, it is the law in Ohio that where a plaintiff makes an opening statement wherein he avers the essential elements of the tort but fails to make a clear and detailed statement of the supporting evidence, it is reversible error for the trial court to grant defendant’s motion for judgment. Neckel v. Fox (1924), 110 Ohio St. 150. The court said it was “not disposed to give too rigid a construction to the terms employed by counsel for plaintiff.” 110 Ohio St. at 152.
I approve and follow the rule of Neckel v. Fox as more reasonable than the view taken today, hence this dissent.