Opinion
No. 32410
Decided July 5, 1951.
Motor vehicles — Guest statute — Section 6308-6, General Code — Burden on rider to show he was paying passenger — Contract, express or implied, for transportation for hire — Not established, when.
1. A person seeking to recover from another person for injuries suffered because of the latter's negligent operation of a car in which the person so injured was riding has, under the guest statute, Section 6308-6, General Code, the burden of showing that he paid or expressly or impliedly agreed to pay for his transportation.
2. Where an oral arrangement is made between the owner of an automobile and an automobile repairman engaged to repair the same that, if the former will assist in "tearing down" the motor of his own car as a preliminary to the repair job, the latter will thereafter return the former by automobile to his home a distance of three or three and a half miles, without any further understanding, there does not arise a contract express or implied that such transportation is on the basis of payment to the automobile repairman therefor.
APPEAL from the Court of Appeals for Stark county.
On the evening of February 21, 1947, Kenneth Ames, plaintiff, age 21, drove his car from his home in Massillon to Beach City where his father resided. Ames was on his way to Wilmot, a village about three or three and a half miles beyond Beach City, to take his car there to the garage of William H. Seibert, a friend, for repairs.
Ames had his father follow him to Wilmot to take him back to Beach City when he had delivered the car to Seibert. A conversation ensued between Ames and Seibert about the repair of the car. Ames stated to Seibert that he would like to have his car some time the next day. Seibert said to Ames that if he, Ames, would help him that evening to tear down the car he would have it finished for him the next evening. Ames said he would help tear it down, whereupon Seibert told Ames' father to go home and that he, Seibert, would bring Ames home after they were through work. Pursuant to this conversation, about two and a half or three hours later that same evening, Seibert started to Beach City with Ames in the car.
A few minutes later, travelers found plaintiff walking west on the highway about one half mile east of Wilmot. He was severely injured. To the persons who found him he remarked, "We had a wreck. I think Bill is dead. I want to go back down." About 1,000 feet from where plaintiff was found, Seibert's wrecked car was found on the south side of the highway, headed west, and Seibert was found dead on the side of the road near the automobile.
In proceeding from Wilmot in a southeasterly direction toward Beach City, the car had passed over a hill and had been traveling on a down grade at the time it apparently left the highway. There was some ice on the surface of the highway at a point near where the car had left the road. Apparently, the car had left the north side of the road, had struck a tree located about ten feet beyond the edge of the roadside, had then struck a power pole 10 or 12 feet beyond that, breaking the power pole off at the base, and had come back on the road after striking the pole. Due to the impact the motor was torn from the frame of the car and was found lying about 30 feet behind the automobile.
The plaintiff brought this action against the administrator of the estate of Seibert to recover for plaintiff's injuries, claiming that he was a paid passenger in Seibert's automobile at the time he was injured. He alleged in his petition that Seibert negligently operated his car and caused plaintiff's injuries, in that Seibert operated the car at a dangerous rate of speed on a slippery, winding highway; in that he failed to keep a proper lookout; and in that he operated the car so as not to be able to stop within the assured clear distance ahead and at a speed that was improper under the circumstances.
Defendant, at the close of plaintiff's case and at the close of all the evidence, made motions to direct a verdict for the defendant, both of which were overruled. The jury returned a verdict for the plaintiff, whereupon the defendant filed a motion for judgment notwithstanding the verdict, which motion was overruled. A motion for a new trial was overruled and judgment was entered on the verdict.
Upon appeal to the Court of Appeals, that court reversed the judgment of the Common Pleas Court for error in rejecting evidence offered by the defendant, in refusing to give certain written instructions before argument requested by the defendant, in the general charge to the jury, in inadequately charging on "contractual relationship" in lieu of a charge on the guest statute, in charging generally on violation of statutory traffic rules, in charging on the assured-clear-distance-ahead rule, and in charging that all the specifications of negligence in plaintiff's petition involved "mandatory provisions of the law covering the operation of motor vehicles." A majority of the court found no prejudicial error in the overruling of defendant's motions for a directed verdict or in the overruling of defendant's motion for judgment notwithstanding the verdict, and remanded the cause to the Common Pleas Court for a new trial.
Defendant filed a motion to certify the record to this court on the ground that the Court of Appeals erred in not entering final judgment in his favor, which motion to certify was allowed by this court.
Messrs. Mills Mills and Mr. W.K. Yost, for appellee. Messrs. Day, Cope, Ketterer, Raley Wright, for appellant.
This appeal is necessarily limited to the consideration of questions of law raised by the overruling of defendant's motions for directed verdict and judgment notwithstanding the verdict.
It is conceded that liability in this case is governed by the Ohio guest statute, Section 6308-6, General Code, which is as follows:
"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."
There is no claim upon the part of the plaintiff that Seibert was guilty of wilful or wanton misconduct in the operation of his car at the time of the accident. Consequently, it was incumbent upon the plaintiff to show by a preponderance of the evidence that he had paid or furnished to Seibert some pecuniary consideration for his transportation, as such. It was insufficient to show that he was being transported as a guest without payment therefor. O'Rourke, Admx., v. Gunsley, 154 Ohio St. 375, 96 N.E.2d 1; Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R. (2d), 1342. See Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140; and Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217.
The facts upon which plaintiff relies to establish a contract supported by consideration between him and Seibert for the transportation of the former from Wilmot to Beach City were substantially as hereinbefore stated.
The claim of counsel for plaintiff as to the basis of defendant's liability is stated in his brief as follows:
"Clearly the aid and assistance of the plaintiff in working on his own car to help the decedent, was entirely and clearly for the decedent's own benefit, as it shortened the amount of time that he would be required to spend in doing the work required, and there is nothing in the record to indicate that there was to be any reduction in the price of the work by reason of this assistance or aid from the owner of the car. Therefore, the decedent received something of value, to wit: aid in doing his, the decedent's work from the plaintiff, who was not obligated in any way to help or assist the decedent except in return for the promise of the decedent to drive the plaintiff home after that work or aid had been given to the decedent. It therefore follows that the transportation of the plaintiff from Wilmot, Ohio, back to Beach City, Ohio, was paid for by his rendering service to the decedent in the prosecution and furtherment of the decedent's business of operating a repair garage."
Did this arrangement create a contract for transportation with payment therefor? In the opinion of this court it did not. If Seibert had requested Ames to help him tear down the car of a third person for which Seibert was to receive the entire payment for repairs, a different question would be presented. Here, there was no evidence that an agreed lump sum payment was to be made by Ames to Seibert for the repair of the car or that Ames was to be repaid a portion of such contract price for his assistance. Such evidence was necessary to show that Ames was to be compensated by Seibert for Ames' assistance. The evidence does not show the rendering of any service to Seibert by this arrangement. In fact, the arrangement was made so that Ames could have his own car by the next evening, and, his service, if any, was contributed to the repair of his own car for that purpose. Furthermore, the statement of Seibert to Ames' father that he should go home and not wait for Ames, and that he, Seibert, would bring Ames home, raises an inference that Seibert was making the trip to accommodate the father. At any rate there was no evidence or inference of fact to the effect that either Ames or Seibert had formed any intent that Ames was to compensate Seibert for this short ride of three or three and a half miles. The most that can be inferred from the testimony is that Seibert took Ames home as a courtesy between friends. There is no evidence to prove a contract to pay for transportation and the defendant's motion for a directed verdict should have been sustained.
The defendant insists also that there was no proof of negligence upon the part of Seibert in operating the car. On the other hand, plaintiff contends, and the majority of the members of the Court of Appeals found, that since the car left the highway for reasons unexplained the doctrine of res ipsa loquitor applies and furnishes sufficient proof of negligence. However, in view of this court's holding that no contract for transportation has been shown by the evidence, it is unnecessary to discuss or pass upon this issue.
The judgment of the Court of Appeals is reversed and final judgment is awarded to the defendant.
Judgment reversed.
WEYGANDT, C.J., STEWART, MIDDLETON, and MATTHIAS, JJ., concur.
TAFT, J., concurs in paragraph one of the syllabus and in the judgment.
I have considerable doubt as to whether the facts stated in paragraph two of the syllabus are such as to require a finding, as a matter of law, that the plaintiff was "a guest * * * being transported without payment therefor" within the meaning of those words as used in Section 6308-6, General Code. However, there are additional undisputed facts in the instant case which require such a finding.
Ordinarily, if a repairman is to repair an owner's car and, in addition thereto, transport the owner from the repairman's place of business to a place where the car owner desires to go, the trier of the facts should be permitted to infer that the car owner has impliedly agreed to pay a reasonable amount not only for the work on his car but also for such transportation. However, additional facts and circumstances may repel any such inference of an agreement to pay for such transportation. See paragraphs two, three and four of the syllabus in Drexler v. Labay, 155 Ohio St. 244.
In the instant case, the undisputed evidence shows that (1) there was a very close friendly relationship between the decedent and the plaintiff and (2) the transportation was only an element in enabling the plaintiff to secure the benefit which he desired of having his car repaired within a definite and limited time. If those facts had been included in paragraph two of the syllabus in the instant case, then the facts set forth in that paragraph of the syllabus would have completely negatived any inference, which might otherwise have been drawn, of an agreement by the plaintiff to pay the decedent for the transportation which resulted in the plaintiff's injuries.