Opinion
No. 39984
Decided December 21, 1966.
Motor vehicles — Guest statute — Section 4515.02, Revised Code — Jury's verdict that plaintiff had status of passenger not disturbed — Service rendered driver as accommodation to him — General verdict not inconsistent with answers to interrogatories.
1. Where the evidence in a case permits a factual finding that plaintiff rendered a service for defendant at his (defendant's) request, and as an accommodation to him, upon his promise that he would transport plaintiff to her home in his automobile as a consideration therefor, and that plaintiff performed such service and was injured by defendant's negligent operation of the automobile on the way to plaintiff's home, a determination by a jury, under appropriate instructions of the court, that plaintiff occupied the status of a passenger, entitled to recover damages for her injuries from defendant on the basis of his negligence, will be allowed to stand.
2. A general verdict for plaintiff in such a case will not be disapproved and set aside, unless the answers to special interrogatories submitted to the jury, considered together, are inconsistent and irreconcilable with the verdict.
APPEAL from the Court of Appeals for Lawrence County.
This action to recover damages for personal injuries and grounded on negligence originated in the Court of Common Pleas of Lawrence County with Mary Amy Hogan, a minor, as plaintiff and Steven Dwight Finch, a minor, as defendant.
In her amended petition plaintiff alleges that "on May 29, 1960, she was at Riverside Swimming Club at Chesapeake, Lawrence County, Ohio, with her [older] sister; that when her sister was ready to leave, defendant requested said plaintiff to watch and play with his ten year old brother and relieve defendant of this duty until said defendant was ready to leave and that at such time he would bring the plaintiff home and that by reason of such request, said plaintiff did accept said offer and did remain to watch and play with defendant's brother and to be brought home by defendant in his car."
Further allegations are "that defendant did begin to drive her [plaintiff] home and that as he approached the traffic light at the intersection in Chesapeake, Ohio, he failed to keep his car under control and struck a car that was stopped at said traffic light which was red * * * at the time of said collision."
Continuing, the amended petition charges defendant with such excessive speed that he could not stop within the assured clear distance ahead; that as a result of the collision plaintiff was thrown into and against the cowl and windshield of defendant's automobile with such force that she received bruises and cuts about her mouth and face; that her jawbone was fractured; that five of her teeth were knocked out; and that five prominent teeth were so damaged as to require removal.
Necessary expenses incurred and to be incurred by reason of the alleged injuries are listed at $8,526, and additional general damages are claimed in the sum of $50,000.
Defendant's answer admits the allegations of the amended petition as to plaintiff's minority; that plaintiff was an occupant in defendant's car at the time and place alleged; that defendant was driving the automobile; and that a collision occurred. Then follows a general denial. Additional allegations are in substance that plaintiff was in fact a guest in defendant's automobile, and that the amended petition alleges mere negligence, does not state a cause of action and should be dismissed at plaintiff's costs.
The reply specifically denies that plaintiff "was in fact a guest in defendant's automobile at said time and place."
Upon the jury trial of the action, evidence was presented substantiating the allegations of the petition with respect to defendant's negligence, the substantial personal injuries sustained by plaintiff and the status of plaintiff in the automobile at the time of her injuries.
On direct examination, plaintiff testified that she was about to leave the swimming club with her older sister and some other companions when defendant "yelled to his younger brother [Karl] who was beside me at the time. * * * he asked for me that if I would stay, that he would give me a ride home if I would stay with his brother." This version of what occurred was denied by defendant.
At the request of counsel for defendant and before oral argument, the court gave the following three special charges to the jury:
"Special instruction No. 1: Members of the jury, I charge you that in the case at bar the defendant is charged only with negligence. You will, therefore, concern yourselves only with the question of whether or not the plaintiff was a guest or a passenger in the automobile operated by the defendant in determining whether or not the defendant is liable. Special instruction No. 2: Members of the jury, I charge you that if you find from the evidence that the plaintiff was a guest of the defendant while being transported without consideration therefore, your verdict should be for the defendant. Special instruction No. 3: Members of the jury, I charge you that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that she paid the defendant for her transportation or that she accompanied the defendant at the instance of the defendant for the purpose of having the plaintiff render a benefit or service to the defendant, which was primarily for the attainment of some objective of the defendant. Otherwise, you must find for the defendant."
In its general charge, the court instructed the jury:
"* * * In this case the plaintiff does not claim that defendant was guilty of any wilful or wanton misconduct, and, therefore, if the plaintiff was a guest at the time of the accident, then your verdict must be for the defendant. It, therefore, becomes important that you determine the status of the plaintiff when she commenced her transportation in the car of the defendant. The statute says that if the plaintiff is being transported without payment, she is considered a guest; what constitutes payment? It may be an actual payment of money for the ride, but it does not necessarily require a monetary payment. In other words, one is a guest, under this statute where there is no business relationship between the parties, either of present or prospective contract, which provided the occasion for the transportation, and no mutual benefit or otherwise, which could be regarded as a consideration, the only relationship being a social one of hospitality on the part of the driver. It is sufficient to remove a person from the classification of a guest if a person, by some service or assistance to the operator in making the trip, compensates the operator in a material or business sense, as distinguished from mere social benefit or nominal or incidental contribution to expenses. In determining the status of the plaintiff, you will carefully consider all of the evidence, including what conversations the plaintiff and defendant had concerning the ride, what they did, whether there was a consideration for the ride, the age of both the plaintiff and defendant, their intentions before and at the time of the ride and from it all determine whether or not plaintiff was a guest and, if she was, then she cannot recover and your verdict will be for the defendant. If you find from a consideration of the evidence that the plaintiff was not a guest, then you will consider the amount of damages to be awarded. It is admitted that the defendant, at the time of this accident, was negligent, that he ran into the car ahead of him. If, in your determinations, you determine that Amy Hogan was not a guest, you will then direct your attention to the amount of damages from the evidence. * * *"
At defendant's request, two interrogatories were submitted to the jury. These, with the answers thereto, each signed by nine of the jurors, are as follows:
"Interrogatory No. 1: Do you find that any consideration passed to the defendant for the trip home? Answer: Yes.
"Interrogatory No. 2: If your answer to interrogatory No. 1 is yes, state what said consideration consisted of. Answer: To influence the older sister of the plaintiff."
A general verdict for plaintiff in the sum of $10,000 was returned, signed by nine of the jurors. Defendant's motions for a directed verdict, made at the close of plaintiff's case in chief and at the close of all the evidence, and for judgment notwithstanding the verdict were overruled, and judgment was rendered on the verdict.
An appeal to the Court of Appeals on questions of law resulted in an affirmance of the judgment below, and the cause is now in this court for decision pursuant to the allowance of a motion to require the Court of Appeals to certify the record.
Mr. Elliott E. Meyers, for appellee.
Messrs. Edwards Klein and Mr. H.M. Edwards, for appellant.
We recognize that the so-called "guest statute," Section 4515.02, Revised Code, is a part of the law of Ohio and should be recognized. We also recognize that there are close cases wherein that statute is not applicable.
In the instant case, the jury was fully advised in the special and general charges as to the difference between a "guest" and a "passenger" in a motor vehicle, and that, in order to recover. the burden rested on plaintiff to establish her status as a passenger.
The charges as given are in substantial conformity with prior decisions of this court. See, for example, Dorn, Admr., v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11; Vest, a Minor, v. Kramer, 158 Ohio St. 78, 107 N.E.2d 105; and Burrow, Admx., v. Porterfield, Admr., 171 Ohio St. 28, 168 N.E.2d 137.
There was evidence before the jury that plaintiff remained at the swimming club at defendant's request to perform a service for him in keeping an eye on his then ten-year-old younger brother during his absence at a basketball court outside the swimming pool area; that plaintiff did remain instead of departing with her older sister and other companions as it was suggested she do; and that as a consideration for such service defendant agreed to drive plaintiff to her home later, which he was in the process of doing when plaintiff's injuries occurred. See annotation, 10 A.L.R. 2d, at page 1366.
The general verdict for plaintiff indicates that, under the court's changes, the jury found plaintiff to have been a passenger rather than a guest in defendant's automobile, and that she was entitled to recover on the basis of defendant's negligent operation of the vehicle.
As to the two interrogatories prepared and requested by counsel for defendant and submitted to the jury, the propriety of which may be questionable within the provisions of Section 2315.16, Revised Code, the answer to No. 1 was responsive to the question and indicated an attitude of the jury favorable to plaintiff. The answer to No. 2 is unsatisfactory and inappropriate, although the bill of exceptions does contain testimony that defendant was an admirer of plaintiff's older sister and had had a number of social contacts with her. But, is the answer to No. 2 of such a character as to invalidate the verdict and judgments as counsel for defendant insists? Section 2315.17, Revised Code, recites:
"When a special finding under Section 2315.16 of the Revised Code is inconsistent with the verdict, the former shall control the latter, and the court may give judgment accordingly."
In Prendergast v. Ginsburg, 119 Ohio St. 360, 164 N.E. 345, It is stated in the first paragraph of the syllabus:
"Judgment should not be rendered on special findings of fact as against the general verdict unless such special findings, when considered together, are inconsistent and irreconcilable with the general verdict."
See, also, Davis v. Turner, 69 Ohio St. 101, 68 N.E. 819, and Board of Commissioners of Mercer County v. Deitsch, 94 Ohio St. 1, 113 N.E. 745.
It is our opinion that, despite the inappropriateness of the answer to interrogatory No. 2, it is not so defective and faulty as to demand reversal in light of the general verdict and the answer to interrogatory No. 1. It is not of such a disastrous nature that it can be termed "inconsistent and irreconciable with the general verdict."
The credibility of witnesses and the weight to be given their testimony is, in the first instance, for the trier of the facts. This is a borderline case for plaintiff, but under the instructions of the court the jury resolved the factual issues in her favor, and the trial court rendered judgment for plaintiff on the verdict. That judgment was affirmed by the Court of Appeals, and a majority of this court is unwilling to reverse the judgments below. Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
In order to recover, it was necessary for plaintiff to establish that she was not a "guest * * * being transported without payment therefor" within the meaning of those words as used in the guest statute (Section 4515.02, Revised Code). In order to establish some payment for her ride, plaintiff made the allegations described on page 36, supra, as to defendant's request that plaintiff watch and play with his young brother and relieve defendant of that duty. These are the only allegations in the petition which could possibly be construed as alleging any payment or consideration by plaintiff for defendant's transportation.
Defendant argues that the answers to the interrogatories establish as the consideration for plaintiff's transportation only something other than the payment or consideration so alleged, and hence necessarily represent a finding by the jury against plaintiff on those allegations. See Davison v. Flowers (1930), 123 Ohio St. 89, 96, 174 N.E. 137.
Defendant then contends that, by reason of Section 2315.17, Revised Code, the answers to these interrogatories should control the general verdict and require a judgment for defendant.
Section 2315.17, Revised Code, provides:
"When a special finding under Section 2315.16 of the Revised Code is inconsistent with the verdict, the former shall control the latter, and the court may give judgment accordingly."
The language of that section indicates that only "a special finding under Section 2315.16" is to have the effect sought by defendant.
Under the words of Section 2315.16, such a special finding must be a finding "upon particular material allegations contained in the pleadings controverted by an adverse party."
It is obvious that neither of the interrogatories nor answers thereto in the instant case represents such a finding.