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Berisford v. Sells

Supreme Court of Ohio
Jul 23, 1975
43 Ohio St. 2d 205 (Ohio 1975)


No. 74-307

Decided July 23, 1975.

Court procedure — Verdicts — Negligence — General verdict for defendant — Judgment affirmed, when — Charge to jury — Motor vehicles.

APPEAL from the Court of Appeals for Belmont County.

On August 14, 1966, plaintiff, Martha Berisford, appellant herein, and defendant, Mary Sells, appellee herein, were returning to resume classes at Ohio University in Athens following a weekend visit to their homes in Martins Ferry, when, after driving through a six-inch deep hole covered by an accumulation of water, Sells lost control of the car, which crossed the highway and plunged into a roadside ditch, causing injuries to Berisford.

An informal arrangement existed among certain Martins Ferry girls attending Ohio University to ride together whenever going to or from Athens. Appellant has contended throughout the proceeding that she had entered into an ongoing agreement to pay for her transportation.

Berisford's amended complaint, filed in the Court of Common Pleas of Belmont County, alleged that Sells had been guilty of ordinary negligence, and that recovery should be had under the first claim which alleged an agreement to pay for the ride, or under the second claim which failed to allege payment but described herself as a "passenger."

Defendant moved to dismiss the second claim for the reason that R.C. 4515.02 precluded recovery under that claim in the absence of an allegation of payment for the ride or defendant's willful and wanton misconduct. The court granted the motion to dismiss the second claim without stating reasons therefor.

At trial, plaintiff moved to reinstate the second claim, urging that the guest statute is unconstitutional, and that, therefore, her allegations stated a claim upon which relief could be granted in the absence of the statute. The motion was summarily overruled.

After the court overruled motions for directed verdict, the jury returned a general verdict in favor of the defendant.

Upon appeal, the Court of Appeals rejected plaintiff's contention that the guest statute is unconstituional, ruled that plaintiff's failure to comply with Civ. R. 51 precluded an attack on alleged omissions in the court's charge to the jury and affirmed the judgment in favor of defendant.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Messrs. Frazier Sommer, Mr. Karl W. Sommer, Jr., Messrs. Thomas Thomas and Mr. Harold B. Thomas, for appellant.

Messrs. Kinder, Kinder, Kinder Hanlon and Mr. Gordon T. Kinder, for appellee.

Appellant has asserted, from the trial court level to this court, that the dismissal of the second claim of her amended complaint, in effect, thwarted her attempt to challenge the constitutionality of the Ohio guest statute. We disagree, and find that no constitutional question is presented by the proceedings below.

There is no substantial difference between the two claims presented by appellant. In the first claim, appellant alleges that she was a "passenger," who had been damaged through appellee's ordinary negligence (excessive speed) which was the proximate cause of the injury. "Passenger" status is supported by the allegation that there existed an oral agreement to pay for the transportation.

We find that the second claim is merely an abbreviated version of the first (with a failure to specify speeding as the negligent conduct and a failure to allege that passenger status was grounded in an agreement to pay for the ride), except that proximate cause is not alleged.

Upon that basis, the dismissal of the second claim is arguably justified (an absence of proximate cause amounts to failure to state a claim [Civ. R. 12(B)(6)] or the insubstantial difference between the claims warrants a dismissal of the second claim because it is redundant [Civ. R. 12(F)]), and appellant has not attempted to show how such action prejudiced her rights.

From the record presented, it is impossible to determine whether prejudice resulted to appellant or whether the guest statute operated to deny her recovery. The record discloses only that (1) appellant at all times alleged that she was a "passenger" and that the defendant was guilty of ordinary negligence; (2) the court charged the jury to determine three issues of fact: Whether defendant was negligent, whether that negligence was the proximate cause of plaintiff's injuries, and whether plaintiff was a "passenger" or a "guest" in defendant's automobile; and (3) the jury found for the defendant in a general verdict (Civ. R. 49[A]), which was not "tested" by interrogatories pursuant to Civ. R. 49(B).

If the jury's verdict was grounded upon a finding of no negligence, there was evidence of record to support such conclusion, and the verdict should not be disturbed. If the verdict was grounded upon a finding that plaintiff was a "guest" rather than a "passenger" and pursuant to the court's charge the jury applied the guest statute to preclude liability, then the statute's validity would be a proper subject for appeal.

However, the verdict form states that the jury found "the issues in this case in favor of the defendant" (emphasis added), and in the absence of interrogatories it is to be presumed on review that the jury's verdict was founded upon the issue tried free from alleged error — negligence, in this case. H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, 303.

Accordingly, the judgment of the Court of Common Pleas should have been affirmed, and a determination of the constitutionality of R.C. 4515.02 was not required to reach that result.

The judgment of the Court of Appeals is affirmed insofar as it affirmed the judgment of the Court of Common Pleas.

Judgment affirmed.


Summaries of

Berisford v. Sells

Supreme Court of Ohio
Jul 23, 1975
43 Ohio St. 2d 205 (Ohio 1975)
Case details for

Berisford v. Sells

Case Details


Court:Supreme Court of Ohio

Date published: Jul 23, 1975


43 Ohio St. 2d 205 (Ohio 1975)
331 N.E.2d 408

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