16 N.E.2d 413 | Ohio | 1938
The principal question presented by the record in this case is whether the terms of the insurance policy in question cover an injury sustained by one while riding in the automobile specified, under an arrangement previously made with the assured whereby the owner was to provide and drive the automobile and his two sisters were to pay the expense of the car upon trips made for their mutual benefit. It must be conceded that under the terms of this policy the use of the automobile for carrying passengers for a consideration is excluded from coverage and that *275 there is no liability of the company if, under the facts disclosed by the record, the automobile was at the time in question being used in carrying passengers for a consideration.
We are in accord with the proposition advanced by counsel for the casualty company that one may be a passenger for a consideration in a conveyance other than one operated by a common carrier. The argument that this phrase "passengers for a consideration" has reference only to persons transported by common carriers has little support in reason or authority. On the contrary, it is quite well settled that one may be a passenger for a consideration in an automobile which is ordinarily operated as a private conveyance.
In our opinion, no theory of estoppel is applicable in this case, either against the plaintiff or the defendant casualty company. The record does not support the assertion that the plaintiff prevailed in the original proceeding and secured a judgment upon the theory that she was a passenger for a consideration and consequently is now precluded from recovering in this supplemental proceeding on a policy which expressly excluded from its terms damages arising while the automobile was being used for carrying passengers for a consideration. In the former proceeding, the fact was clearly established that the plaintiff was not a guest within the meaning of Section 6308-6, General Code, which precludes recovery for "loss or damage arising from injuries to or death of a guest while being transported without payment therefor" unless such injuries or death are caused by the wilful or wanton misconduct of the owner or operator of such automobile. The same facts were before the court in both proceedings.
It was properly concluded that, under the facts presented by the record before us, the plaintiff in this case was not a guest of the owner and driver of the *276
automobile. It does not follow, however, from that fact that she was necessarily a passenger for a consideration within the meaning and intent of the clause of exclusion in the insurance policy in question. In the recent case of Dorn, Admr., v.Village of North Olmsted,
It must be conceded that there is a division of authority in the construction and application of the clause in question. All are in accord upon the proposition that under the terms so employed the protection of the policy does not cover an automobile when used in carrying passengers for a consideration. The apparent divergence arises from the variety of the fact situations presented in the various cases. Counsel for the casualty company draw the line of demarcation between the cases where there is a voluntary contribution of gasoline, oil or part of the traveling expenses and those cases where there is an agreement or understanding made or entered into in advance of the transportation as to the compensation for the transportation. Upon that theory one would be a passenger for a consideration if he agreed in advance to furnish gasoline for the proposed trip, but would not be a passenger for a consideration if he paid for the gasoline *277 for the same purpose but made no previous promise or statement about it. It is to be observed that in this case the arrangement was made pursuant to a common purpose of the plaintiff, her sister and her brother, who was the assured, which purpose was to visit their father who was in a hospital in Columbus. The assured was to furnish and drive the car and the sisters were to pay the expenses of the car in making the trips to Columbus for the purpose stated. In pursuance of that arrangement, several such trips were made.
In the case of Sleeper v. Massachusetts Bonding Ins. Co.,
In the case of Ocean Accident Guarantee Corp., Ltd., v.Olson,
In the Ocean Accident Guarantee case, supra, the facts were that the persons constituting the party contributed to a fund covering expense only. Nothing was contemplated for the use of the automobile and no definite sum was agreed to be paid as appeared in Cartos v. Hartford Accident Indemnity Co., supra, where again the distinction is made between the furnishing of gasoline or paying a share of the expense and an advance agreement to pay a specified sum of money.
The Supreme Court of Iowa, in the case of Park v. NationalCasualty Co., supra, likewise held that the member of an orchestra to whom the members contributed *279 traveling expense was not carrying the other members for a consideration within the exclusion provisions of an automobile liability policy. The cases we have previously cited are there quite fully analyzed and discussed and the following conclusion is announced:
"It is apparent that the authorities quite generally concede that money passing from the passenger to the operator of a car, though associated with the carrying of the passenger, may or may not be a consideration for such carrying, within the meaning of a policy provision such as we are considering. In making the distinction the courts take into consideration not alone the bare transaction but all its surrounding circumstances, including among other things the status and relations of the parties one to another, the existence or lack of common interest, pleasure or benefit in the making of the journey, and the relation of the amount of the money to the actual costs of carrying."
To the same effect is United States Fidelity Guaranty Co.
v. Hearn,
In the case of Smith v. Clute,
Referring again to the undisputed facts in the case at bar, it is found that it comes within that class of cases where the parties joined in meeting the expenses of a trip made for their mutual interest, pleasure or benefit and where the purpose of the trip on the part of the owner of the automobile is not the carrying of passengers for compensation. This brings us to the conclusion that the Common Pleas Court was in error *280 in its finding and judgment and that the Court of Appeals likewise committed error in affirming that judgment.
The judgment of the Court of Appeals will be reversed and final judgment entered for appellant in this court.
Judgment reversed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.