Opinion
Nos. 32789 and 32790
Decided June 18, 1952.
"Motor vehicle" defined — Utility trailer attached to automobile, a "motor vehicle" — Pleading — Effect of motion for judgment on pleadings and opening statement — Guest statute — Section 6308-6, General Code — Scout master operating automobile with trailer — Boy scout riding on trailer — Both engaged in collection of paper for scout troop — Injury to scout while so riding and action therefor against scout master — Judgment for defendant on petition and opening statement — Not warranted, when.
1. A two-wheeled utility trailer which is designed for and employed in general highway transportation and which is attached to and operated as a unit with an automobile which provides the operative power for the unit is a motor vehicle within the meaning of subdivision 2 of Section 6290, General Code.
2. A motion by defendant for judgment on the pleadings and statement of counsel for the plaintiff is an admission by the defendant, for the purposes of the motion, of the truth of the well pleaded facts, the statement of counsel and all proper inferences which may be drawn therefrom and leaves no disputed fact to be determined by the jury but only a question of law for the court.
3. In an action on behalf of a member of a boy scout troop against the assistant scout master of the troop for personal injuries resulting from the claimed negligent operation of a two-wheeled utility trailer attached to defendant's automobile, where it appears from the allegations of the petition and opening statement of counsel that the boy scout, 12 years of age, and the defendant were engaged in collecting waste paper from premises along the public streets and highways and transporting it to a central point as an enterprise for the benefit of the troop through the use of the trailer and automobile operated by the defendant and under his immediate supervision and direction; that the boy scout was assisting in the project by collecting, placing and securing the paper on the trailer during which process he mounted and dismounted from the trailer and received transportation thereon; and that the boy scout in attempting to regain his position on the trailer while it was in motion was injured through the defendant's negligent operation of the automobile and trailer, the defendant's motion for judgment on the petition and opening statement of counsel should not be granted on the ground that the boy scout was at the time of his injury a guest of the defendant, within the meaning of Section 63086, General Code.
APPEALS from the Court of Appeals for Cuyahoga county.
Case No. 32789 is an action by David Vest, a minor, by next friend, for personal injuries suffered on March 16, 1948, in connection with the alleged negligent operation by the defendant of a two-wheeled utility trailer attached to his automobile.
Case No. 32790 is a companion action against the defendant by the father of David Vest for loss of services of the latter growing out of the same accident. By agreement of counsel on pre-trial, these actions were consolidated for purposes of trial and judicial consideration, and will here be considered as one case with terms used in the singular number.
The petition alleges, in substance, the facts as follows:
David was at the times hereinafter referred to a minor about 12 years of age. The defendant was the owner and operator of an automobile with a utility trailer attached thereto and was the acting assistant scout master of Troop 214 of the Boy Scouts of America, located in the city of Berea, of which troop David was a member. On March 16, 1948, the troop, through its officers and committees, as an activity to which the raising of money was incidental, was engaged in a scrap paper collection under the immediate supervision and direction of defendant. The transportation therefor was supplied by defendant and was under his personal direction and control. About a dozen of the members of the troop supplied the labor for such scrap paper collection which embraced the removal of scrap paper collected from residences and premises along various streets and the placing of same in a utility trailer which defendant had attached to his automobile and which he operated for the purpose of transporting such paper to a point nearby for unloading. On the day in question David, with other boys, all members of troop 214, was engaged under the direct supervision of defendant in such paper collection. By the time they had progressed to a certain point, such utility trailer had become filled and overheaped with papers, and with the knowledge and approval and under the direction of defendant David and several other boys climbed on top of the overheaped papers for the purposes of transportation and weighting the papers down. Defendant started his automobile with the utility trailer attached and after moving a short distance the overheaped papers became insecure and some fell off. Defendant was advised thereof and slowed down the speed of his automobile. Thereafter, while David, after replacing the dislodged papers, was climbing aboard the moving trailer, defendant suddenly and without warning caused his automobile and trailer to move forward with increased speed and David lost his grip and balance, whereupon his right foot became caught in one of the wheels of the trailer as a result of which he was thrown under the wheels and suffered severe injuries.
The petition then alleges that the injuries sustained were occasioned wholly, solely and proximately by the carelessness, recklessness and negligence of the defendant in the operation of the trailer, and sets out specifications of alleged negligence and the nature of the injuries.
The answer of the defendant admits that David was a minor; that on the day in question the defendant, as assistant scout master for such troop, was engaged with David and other members of the troop in the collection of paper as a part of the activities of the boy scouts for the purpose of raising funds; and that while he, David and other members of the troop were engaged in such collection of paper David sustained an injury as the result of an accident. The answer then denies that such accident was caused by any negligence upon the part of the defendant.
The only material facts stated by counsel in his opening statement to the jury in addition to those alleged in the petition were that the trailer in question had a bed on it about eight feet long and four feet wide and had sides ten to twelve inches high.
At the conclusion of the opening statement of counsel for plaintiff, the defendant moved for a judgment in his favor on the pleadings and opening statement of counsel, which motion was granted. Thereupon, plaintiff appealed to the Court of Appeals, which court reversed the judgment of the trial court and remanded the cause to that court for further proceedings according to law.
The cause is now in this court on the allowance of defendant's motion to certify the record.
Messrs. Beach Warner, for appellees.
Messrs. Hauxhurst, Inglis, Sharp Cull and Mr. Michael R. Gallagher, for appellant.
The record in this case, outside the original papers and docket entries, is limited to the material facts stated in the pleadings and the opening statement of counsel for the plaintiff. Since the sufficiency of such facts to warrant a recovery is challenged by the motion for judgment, the court for the purposes of judicial inquiry and determination must accept such facts as admittedly true. Cornell v. Morrison, 87 Ohio St. 215, 100 N.E. 817.
The defendant takes the position that David at the time of his injury was defendant's guest being transported in his motor vehicle, and, since no wilful or wanton misconduct is charged against him, he is immune from liability under Section 6308-6, General Code, known as the "guest statute," 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."
On the other hand, the plaintiff maintains that the two-wheeled trailer which was attached to defendant's automobile was not a motor vehicle within the meaning of the statute; that David was not at the time he was injured riding as a guest of the defendant; and that the ordinary rules of negligence apply to the relationship thus created between him and David.
Subdivision 7 of Section 6290, General Code, defines the term, "trailer," as "any vehicle without motive power designed or used for carrying property or persons wholly on its own structure and for being drawn by a motor vehicle."
Subdivision 2 of Section 6290, General Code, defines the term, "motor vehicle," as "any vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except road rollers, traction engines" and certain other construction work equipment and farm machinery not necessary to be here specifically enumerated. (Italics supplied.)
The question arises whether a trailer attached to and operated by the power of and as a unit with an automobile is a motor vehicle. Although there are cases logically holding that a trailer unattached to a motor vehicle is not itself a motor vehicle, there is scant judicial authority as to its status when attached to and operated in connection with a motor vehicle furnishing the power for its operation. The definition of "motor vehicle" as being " any vehicle * * * drawn by power other than muscular power or power collected from overhead electric trolley wires" seems to answer specifically the question in the affirmative. Considered from a practical operational standpoint, this is a rational classification. The fact that the operator of an automobile transports another in a trailer attached to his automobile either as his guest or otherwise rather than in the automobile itself would not alter or change the legal relationship between the operator and the person transported.
If the operator of an automobile-trailer outfit should transport gratuitously two persons, one in his automobile and the other in his trailer attached thereto, it would be wholly inconsistent to hold that the one transported in the automobile would be his guest within the meaning of the guest statute whereas the other transported in the trailer would not be such a guest because the trailer was not a motor vehicle. See Leamon v. State, 17 Ohio App. 323. The courts in at least three jurisdictions outside this state have held that, although the motor which pulls a trailer is that of another vehicle, the trailer, when operated as a unit with the motor vehicle, is so exclusively dependent upon the motor for movement that it also must be considered a motor vehicle within the meaning of traffic laws. Gendreau v. State Farm Fire Ins. Co., 206 Minn. 237, 288 N.W. 225; Miller v. Berman, 55 Cal.App.2d 569, 131 P.2d 18; State v. Harper, 353 Mo., 821, 184 S.W.2d 601. Contra, see Hennessy, Admx., v. Walker, 279 N.Y. 94 17 N.E.2d 782, 119 A.L.R., 1029, two judges dissenting. See, also, Liberty Highway Co. v. Callahan, Admx., 24 Ohio App. 374, 381, 157 N.E. 708.
60 Corpus Juris Secundum, 110, Section 1, states the rule as follows:
"A trailer or a semitrailer is a vehicle, but is not a motor vehicle, except that in so far as it facilitates the primary function of a motor vehicle of transporting persons and things, after being attached to the motor vehicle for that purpose, it may be regarded as becoming a part of the motor vehicle, although as to the latter proposition there is also authority to the contrary."
It is the view of this court that the trailer in the instant case, as operated at the time of David's injury, was a motor vehicle.
The question remains, was David a guest of the defendant at the time of the injury, within the meaning of the guest statute? This court has held that this statute, being in derogation of the common law, must be strictly construed ( Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217; Kitchens v. Duffield, 149 Ohio St. 500, 79 N.E.2d 906), which means in the instant case that, if the status of David at the time of injury falls within any category other than "guest," the defendant is liable for his negligence, if any, which proximately contributed to David's injuries.
This court in the case of Dorn, Admr., v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11, defined the word, "guest," as follows:
"Within the meaning of Section 6308-6, General Code, a guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a motor vehicle, who accepts such hospitality and takes a ride either for his own pleasure or on his business without making any return to or conferring any benefit upon the driver of the motor vehicle other than the mere pleasure of his company."
Also, this court in the case of Hasbrook v. Wingate, 152 Ohio St. 50, 56, 57, 87 N.E.2d 87, 10 A.L.R. (2d), 1342, distinguished, in the following language, the term, "guest," from the term, "passenger," within the meaning of the guest statute:
"The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, good will or the like, on the person furnishing the transportation, the rider is a guest; but if his carriage tends to promote the mutual interest of both himself and driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest. 60 Corpus Juris Secundum, 1012, 1013, Section 399 (5); Scholz v. Leuer, 7 Wn.2d 76, 109 P.2d 294; Peery v. Mershon, 149 Fla. 351, 5 So.2d 694. See Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 95 A.L.R., 1177; Eubanks v. Kielsmeier, 171 Wn. 484, 18 P.2d 48; Clendenning, Admr., v. Simerman, 220 Iowa 739, 263 N.W. 248; Liberty Mutual Ins. Co. v. Stitzle, 220 Ind. 180, 41 N.E.2d 133." See, also, LeSage v. Pryor, 137 Tex. 455, 154 S.W.2d 446; Malloy, a Minor, v. Fong, 37 Cal.2d 356, 232 P.2d 241. Of course, it must be remembered that in the Hasbrook case it was claimed that the rider made payments for gasoline used by the driver of the automobile and, hence, was not a "guest."
Applying the foregoing definition of "guest" to the allegations of the pleadings and the statement of counsel as admitted facts for the purpose of this review, it is apparent that David's transportation was not a gratuitous one offered to and accepted by him for the purpose of a ride only. According to the statement, David did not "take a ride either for his own pleasure or on his business," nor did his transportation confer a benefit "only" on him, which was essential to render him a "guest." He was assisting in the scout project which was "under the immediate supervision and direction of the defendant" by collecting, placing, and securing the paper on the trailer "under the direction of defendant" which made necessary David's own transportation thereon as an incident to the project.
The court in Knutson v. Lurie, 217 Iowa 192, 198, 251 N.W. 147, observed:
"* * * one may be an occupant of an automobile without being a guest or a mere invitee, and yet not be a passenger for hire. There is no relationship of guest or passenger by mere invitation if the occupant of the car is a nongratuitous passenger, as that term previously has been defined. Furthermore, it is manifest that in determining the benefit, it is proper to take into consideration `not merely the act of transportation * * * but also any contract or relationship between the parties to which it was an incident.'"
In 4 Blashfield Cyclopedia of Automobile Law and Practice, 307, Section 2292, it is stated:
"One important element in determining whether a person is a guest within the meaning and limitations of such [guest] statutes is the identity of the person or persons advantaged by the carriage."
A study of the fact statement and the inferences to be drawn therefrom, upon which the motion in the instant case was predicated, warrant the conclusion that one of three possible relationships existed between David and the defendant in connection with David's transportation. Such relationships are (1) that David was rendering service to the defendant who had taken over the job of transporting the papers for the troop, (2) that David and the defendant were jointly and mutually interested in the project of picking up and transporting the papers, and (3) that David and the defendant were fellow workers for the troop in prosecuting the paper-collecting project.
If David and the Defendant stood in the relationship to each other in any one of the three categories above mentioned, David was not a guest of the defendant. If David stood in the relationship described in (1), his transportation was for the attainment of some objective or purpose of the defendant and David was not his guest. Dorn, Admr., v. Village of North Olmsted, supra; Scholz v. Leuer, 7 Wn.2d 76, 109 P.2d 294.
In the Dorn case, above cited, plaintiff's decedent was invited by the defendant to enter his automobile for the sole purpose of pointing out to the defendant the location of a certain house a short distance away, to which the defendant desired to go, and the court held that where the ride was wholly incidental to the purpose of showing the defendant the location of the house the ride was not for the rider's own pleasure or business and that he was, therefore, not a guest. In that case there was no payment for the ride because plaintiff's decedent sought no ride. In this connection, Judge Myers, in the course of the opinion, said:
"An examination of legal authorities discloses that various terms are used to designate the different capacities in which a person may be riding in the automobile of another. The terms most commonly used are `guest' and `passenger,' and less frequently `licensee' and `invitee.' The liability of an owner or driver of an automobile for negligence toward a person being transported in such automobile is usually, but not always, determined by the fact whether such person is a guest or a passenger for hire.
"In seeking to determine whether Wilkinson, when he got into the defendant's automobile, legally came within the definition of any one of the foregoing terms, we at once rule out the term `licensee.' Wilkinson was not a mere licensee in the defendant's automobile. He was invited into the car for a definite purpose.
"In the instant case, Wilkinson was not a licensee but an invitee for the benefit of the defendant. But the invitation extended by the defendant was not primarily to give Wilkinson and Alford a ride in the automobile. The invitation was tendered in order that the two men might show the defendant where Shindler lived. The language of the defendant was `Boys, come along with me, and show me where it is.' The invitation was not primarily to accept a ride but to do a favor for the defendant. It was not a transportation transaction that was being entered into. The ride was wholly incidental to the main purpose of showing the defendant where Shindler lived."
If David stood in the relationship described in (2), the transportation tended to promote the mutual interests of both himself and defendant and operated for their common benefit, in which event David was not a "guest." Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140; Hart, a Minor, v. Hogan, 173 Wn. 598, 24 P.2d 99; Thompson v. Farrand, 217 Iowa 160, 251 N.W. 44; Woodman v. Hemet Union High School Dist., 136 Cal.App. 544, 29 P.2d 257; Thuente v. Hart Motors, 234 Iowa 1294, 15 N.W.2d 622; Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169; O'Hagan v. Byron, 153 Pa. Supp., 372, 33 A.2d 779.
In Woodman v. Hemet Union High School District, above cited, the guest statute of California was involved, which defined a guest as a passenger who accepts a ride in any vehicle without giving compensation therefor. A boy who had applied for membership and who was paying dues in a boy scout troop was held not to be a guest within the meaning of the California statute where he was riding on a truck operated by another boy scout in returning from a trip to procure rocks and sand to be used at the scout barracks. See 82 A.L.R., 1365.
In the case of Thuente v. Hart Motors, above cited, wherein the defendant furnished a truck and driver for a scrap drive to aid the war effort and the plaintiff and others furnished physical labor in loading and unloading the truck, the plaintiff was held not to be a "guest" within the meaning of a guest statute requiring a showing of recklessness to recover for injuries sustained while the person injured was riding on the truck.
In the case of Forsling v. Mickelson, above cited, it was held that where a musician, who had volunteered his services for a booster trip to advertise a community enterprise called the "corn carnival," was being transported in an automobile donated for the purpose by a public spirited businessman, the musician was not under the guest statute a "guest" of the businessman.
In the case of O'Hagan v. Byron, above cited, it was held that a plaintiff passenger, who was induced for the benefit of her sisters to make an automobile trip to render an opinion of the physical condition of the parties' brother, was not a "guest" within the meaning of the Ohio guest statute.
If David stood in the relationship described in (3), his transportation as well as that of the defendant was incidental to the project being prosecuted with their assistance, and David was not a guest.
In Hansen, Admr., v. Nelson, 240 Iowa 1298, 39 N.W.2d 292, the common employer of two employees, Stalzer and Christensen, sent them on a business trip to a nearby city. Stalzer drove the automobile and Christensen went along at the direction of the employer to help shovel snow "if they ran into difficulty." Stalzer had a collision with another car causing personal injury to Christensen from which he subsequently died. Upon suit by the personal representative of Christensen against Stalzer, the question arose whether Christensen was a guest. The court held that where a deceased was accompanying a fellow employee in his automobile on an errand for their common employer it was not necessary that the fellow employee, operator of the car, should derive any special benefit in order to negative a guest relationship and that the decedent was not the guest of his fellow employee operating the car.
In Dobbs v. Sugioka, 117 Colo, 218, 185 P.2d 784, Sugioka brought suit against Dobbs for personal injuries sustained by her while riding in Dobb's automobile. Both parties were in the joint employ of several missionary societies called "The Plan." It was their duty to attend and report certain conferences. Dobbs was executive secretary in the Denver office and plaintiff was his secretary and stenographer. They were en route to Casper, Wyoming, in defendant's automobile and the expenses of the trip were paid by him from funds furnished by "The Plan." The question was whether the plaintiff was a guest in Dobbs' car. The court held that she was not and might maintain the action.
In Howes v. Kelman, 326 Mass. 696, 96 N.E.2d 394, plaintiff was requested by a member of the firm employing plaintiff to work overtime, and she agreed to do so if the firm would furnish her transportation home. Plaintiff did work overtime and a member of the firm requested the defendant who was also an employee of the firm to drive the plaintiff home in the firm's car. On the way home an accident resulted because of the negligence of the driver employee. The court held that the jury was entitled to find that the plaintiff was not a gratuitous passenger to whom defendant, operator of the car, owed the duty only of refraining from gross negligence.
The court is of the view that the petitions in the instant cases state a cause of action and there is presented an issue of negligence for the jury.
The judgments of the Court of Appeals are affirmed.
Judgments affirmed.
WEYGANDT, C.J., and ZIMMERMAN, J., concur.
STEWART, J., concurs in the syllabus and in the judgments.
MIDDLETON, TAFT and MATTHIAS, JJ., concur in paragraphs one and two of the syllabus but dissent from the judgments.
I concur in the syllabus and in the judgments, for the reason that the judgments for defendant in the trial court resulted from the granting of his motion for judgment on the pleadings and opening statement of counsel for plaintiffs.
It seems to me that there are allegations in the petitions and language in the opening statement of counsel for plaintiffs from which an inference could be drawn that David was not a guest in defendant's motor vehicle.
I agree with many of the statements in the opinion but not with all of them. It seems to me that some of the statements give the impression that we are deciding these cases upon the merits of the main controversy between the plaintiffs and defendant rather than upon the narrow question of the trial court's action in rendering judgment upon defendant's motion. My decision in these cases is limited to that one question.
The decisions of this court have heretofore consistently recognized that one riding on a motor vehicle with the permission of the owner or operator of the motor vehicle is a "guest" within the meaning of the guest statute; and that, in order to hold the owner or operator of the motor vehicle liable for mere negligence causing injury to such guest, such guest has the burden of alleging and proving that he was not, as the statute specifies, "being transported without payment therefor."
Thus, in the most recent decision of this court on the subject ( Ames v. Seibert, Admr., 156 Ohio St. 45, 99 N.E.2d 905) paragraph one of the syllabus reads:
"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." (Emphasis added.)
The language of paragraph one of the syllabus in Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R. (2d), 1342, is substantially the same.
Although the opinion in Hasbrook v. Wingate, supra, does distinguish between a "guest" and a "passenger," the significance of that distinction is apparent from the following language of the opinion at page 53:
"In 2 Restatement of Torts 1273, Section 490, the designation of `passenger' as one carried for hire or reward, as distinguished from `guest' as one carried gratuitously, that is, without any financial return except such slight benefit as is customary as part of the ordinary courtesy of the road, has been adopted. For convenience, these terms will be adopted in this opinion to distinguish a person who has paid for his transportation within the meaning of the statute from one who has not made such payment."
There is absolutely nothing in the petitions or in the opening statement in the instant cases from which an inference can be drawn that defendant received or expected to receive any benefit from David's riding on his motor vehicle other than the beneficial feeling which a party might experience by devoting his time and his property to help others such as David and his fellow boy scouts. Such beneficial feeling, to use the words of paragraph three of the syllabus in Hasbrook v. Wingate, supra, is obviously no more "than such as is incidental to hospitality, good will or the like." See also O'Rourke, Admx., v. Gunsley, 154 Ohio St. 375, 96 N.E.2d 1. Even if the carriage of David as a "rider" by defendant did tend "to promote the mutual interests of both" David and defendant in the boy scouts, it did not, to use the further words of that paragraph of the syllabus, create "a joint business relationship between them." See also Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140, where it is stated in the opinion at page 188:
"What is meant by the words of the statute, `transported without payment therefor,' as applied to the facts in this case? Keeping in mind the purpose of the statute, it would seem that any expense money paid by a person for a ride in an automobile which is not substantially commensurate with the cost of such transportation will not take him out of the guest status fixed by the statute, unless payment for transportation as such was actually agreed upon. The justice of this rule is based on the fact that it would be unfair to hold the motorist to liability for injuries to his guest due to the hazards of transportation, unless the motorist is, in turn, compensated for such transportation in a manner substantially commensurate with the cost and the hazards of the undertaking."
If the allegations and statements of the petitions and the opening statement were such as to justify an inference that defendant received any pecuniary or other material benefit for furnishing his motor vehicle and services to transport David, there might be some justification for considering whether that transportation was, to use the words of the statute, with "payment therefor." See Dorn, Admr., v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11. Thus, it might possibly be arguable that an employee transported in his employer's motor vehicle is making payment for the transportation because of the services being rendered to the employer. Likewise, it might possibly be arguable that such employee transported in the motor vehicle of another employee of the employer is making such payment indirectly to such other employee by reason of the services he renders for his employer and the compensation which such other employee receives from the common employer. However, there were no allegations or statements which might justify an inference that defendant received or expected to receive any pecuniary or material benefit for his motor vehicle or for his services in operating it. As the decisions of this court have indicated, the burden of alleging and proving at least the receipt or expectation of receiving such benefit or other payment was on the plaintiffs. See Ames v. Seibert, supra; Hasbrook v. Wingate, supra.
MIDDLETON and MATTHIAS, JJ., concur in the foregoing dissenting opinion.