Opinion
No. 72-223
Decided December 15, 1972.
Motor vehicles — Guest statute — R.C. 4515.02 — Passenger a "guest," when — Negligence — Evidence.
APPEAL from the Court of Appeals for Franklin County.
In the early morning hours of March 10, 1966, three Ohio State University students, John R. Callahan, Clifford A. Klein and Stephen P. Reynolds, were involved in an automobile accident on the university campus. The car in which they were riding struck a concrete bridge abutment at high speed, killing Klein and Reynolds instantly. The facts of the instant case have been gleaned from the only evidence adduced below, the deposition of John Callahan, who was the sole survivor and only witness to the events of that tragic night.
The deposition reads as follows:
"A. [On March 9, 1966] * * * Clifford Klein came over to my apartment to discuss a trip we had planned to Florida over the spring vacation, and it seems that we were supposed to meet two girls who had responded to a note that he had placed for riders to Florida. They were to be at the North Heidelburg Bar.
"So at about 11:15, 11:30 [p.m.], we drove to the * * * Bar, I drove and parked directly in front and we went in and when we got into the bar we saw Steve Reynolds who was acquainted with Cliff and who I had met on one previous occasion.
"* * *
"A. * * * As it turned out, the girls did not show up, so Cliff and I just stayed * * * [and at] probably 20 after 12:00 * * * [Steve Reynolds] joined us along with two or three other guys at our booth. We remained there until just before closing time, 12:55, when we all had to get up and leave.
"* * *
"A. We left the North Heidelburg and we got outside and Cliff and I had planned to get something to eat before I was to take him home, and at that time Steve asked if he could have a ride back to [his] dorm, Drackett Tower dormitory. So, I agreed and we got in the car and took him back.
"Q. Now, who was driving?
"A. I was.
"* * *
"A. * * * [Clifford Klein] was in the front [seat]. * * *
"* * *
"A. I drove * * * to * * * Drackett Tower dormitory, and I pulled into the Tuttle parking lot there to the left and let him out. At this time, he got out of the car and walked around and asked me if he could take the car for a ride, for a drive, and I told him * * * some other time * * *. But, he told me that he was just going to take it for a little drive. So, I agreed and he got in the driver's seat and I moved over to the right front passenger seat and Cliff got in the back seat.
"* * *
"A. * * * [after driving around for a while] I had requested that he turn around and go back to the dormitory, which he did.
"* * *
"A. He was driving normally * * *.
"* * *
"A. We * * * retraced our steps back * * * [to] the entrance of Drackett Tower [which] is Tuttle parking where we started from and he drove past this point at which time I asked him why he didn't stop there or why did he fail to turn in. He said that he was looking in the rear view mirror and he said he saw a police car behind him and, at this point, Cliff in the back seat and myself turned to look and see if there was anything, and there was no traffic at all * * *. So, we said we didn't see anything. He said `Well, I think I will just go around the block to make sure nobody is following.' So, we proceeded onto Woodruff Avenue and turned right and we were still going slowly, but the first street that we would have turned off which would have completed going around the block was Tuttle Parkway and we passed that and still no conversation or anything in the car. Shortly after * * * that * * * Steve accelerated the car rapidly * * * until Cliff in the back seat said, `Do you see that curve up there?'
"It was just instants thereafter * * * and the car was * * * out of control and I felt a spinning sensation and was aware of crashes, I think, minor crashes and then a tremendous impact and then I don't recall anything until I was aware of being in the water."
The administrator of Klein's estate filed a wrongful death action in the Court of Common Pleas against Reynolds' administrator, and the latter moved for summary judgment. Klein's administrator appealed the sustaining of that motion, and the Court of Appeals reversed upon the basis that reasonable minds could reach different conclusions as to whether Reynolds' "pretending" to see a police car behind, and thereafter departing from the owner's suggestion that he return to the dormitory parking lot, caused Klein's status as a guest to cease.
The matter is before this court pursuant to our allowance of appellant's motion to certify the record.
Messrs. Barkan, Barkan Neff and Mr. Frank J. Neff, for appellee.
Messrs. Hamilton, Kramer, Myers Summers and Mr. Robert L. Summers, for appellant.
Since its enactment in 1933 (115 Ohio Laws 57), this court has issued opinions concerning the so-called guest statute (R.C. 4515.02) in no less than 52 cases. Those decisions frequently have resulted from the use by the General Assembly of the ambiguous term, "guest." We decline to further stir the waters at this time with another lengthy dissertation.
The facts of this case are controlled by the following language from pages 35 and 36 in the opinion of Burrow v. Porterfield (1960), 171 Ohio St. 28, 168 N.E.2d 137:
"Our decisions indicate that a rider is a guest within the purview of Section 4515.02, Revised Code, where one of the following relationships exists:
"* * *
"(2) Where the transportation is furnished solely for the social and pleasure purposes of both the rider and driver. Duncan v. Hutchinson, supra ( 139 Ohio St. 185)."
The facts at bar do not present a jury question upon the issue of a continuance or cessation of the flow of hospitality from driver to passenger. Cf. Stiltner v. Bahner (1967), 10 Ohio St.2d 216, 227 N.E.2d 192; Kemp v. Parmley (1968), 16 Ohio St.2d 3, 241 N.E.2d 169; Thomas v. Herron (1969), 20 Ohio St.2d 62, 253 N.E.2d 772.
From the sole evidence in this case, reasonable minds could only conclude "that on the fatal night we had three young men * * * enjoying each other's company, doing what so many young men are prone to do, driving around, enjoying the performance of one of Detroit's products." (Appellant's brief, at page 7.)
As can be seen from the above, appellee's decedent was a guest passenger in the automobile. Thus, since the record presents no evidence of wilful or wanton misconduct upon the part of the appellant's decedent, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.
As I understand the reasoning of the Court of Appeals, it was to the effect that a jury could reasonably conclude that the motivation of the driver, just prior to and at the moment of impact, was merely to satisfy his own desires to drive the automobile and thus not to "give hospitality" to anyone, and that in such event the guest statute would have no application. In so concluding the court relied principally on certain language in Stiltner v. Bahner (1967), 10 Ohio St.2d 216, to the effect that a guest may cease to be a guest "where the driver ceases to be giving hospitality that will benefit the guest" (paragraph four of syllabus) and does not cease to be a guest "as long as the driver of the automobile reasonably intends to give hospitality that will benefit his rider" (paragraph five of syllabus).
This language, when examined in the context of the facts involved in Stiltner, does not in my opinion support the conclusion that the determination of the status of a nonpaying rider — who is doing nothing for the benefit of the driver and who is not being held against his will — as a "guest" or as a "passenger" may be made by simply applying a subjective test as to the driver's awareness of the presence of the rider and whether his thoughts and actions are directed toward supplying "hospitality" directed to the rider, or whether he is concerned at the time solely in satisfying his own desires.
See Burrow v. Porterfield (1960), 171 Ohio St. 28, at page 35 et seq.
A careful reading of Stiltner indicates that the test of "giving hospitality" was thought to be satisfied by the "benefit" conferred on the rider merely by the act of "providing transportation" without payment. Taft, C. J., stated, at page 222:
"* * * Thus, as long as the driver reasonably intends to confer a benefit on the rider in providing transportation in his vehicle and there is no payment for that benefit, the purpose of the guest statute would appear to require giving the driver the protection that the statute was designed to give, i.e., protection from liability on account of negligence." (Emphasis added.)
I think it clear that the requirement of a "benefit" or "hospitality" as a part of the guest status, within the purview of R.C. 4515.02, is satisfied merely by proof of gratuitous transportation, without regard to the driver's particular thought processes at any particular time during the period of such gratuitous transportation. As held in the syllabus of Kemp v. Parmley (1968), 16 Ohio St.2d 3, "anyone who is being transported in a motor vehicle as a recipient of hospitality, or strictly as a gratuitous accommodation, is a guest."
O'NEILL, C.J., concurs in the foregoing concurring opinion.