39 N.E.2d 140 | Ohio | 1942
The decision of this case calls for the construction of Section 6308-6, General Code, popularly known as the "Ohio Guest Statute." Its context 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 *188 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." (Italics ours.)
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 gratuitiously, 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 designations 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.
Clearly, the purpose of the Ohio statute is to relieve a motorist from all liability for injury to or death of his "guest" resulting from the operation of the motor vehicle, unless such injury or death results from the motorist's wilful or wanton misconduct in such operation.
As before stated, in this case no contention was made and no evidence was adduced to support a claim that defendant was guilty of wilful or wanton misconduct. The sole question to be determined is whether the plaintiff was a "guest" or "passenger." This depends upon whether the transportation of the plaintiff was with or without "payment therefor."
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 *189 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.
On the other hand, where the relationship between the automobile host and a party riding with him has a business aspect and the transportation is supplied for their mutual benefit, any payment or service rendered to the automobile host by such person for the ride will constitute "payment therefor" and will remove the automobile host from the protection of the statute.
It is not necessary that payment for such transportation be made in money. It is sufficient if the passenger by his presence in the automobile or by service or assistance to the operator in making the trip, compensates the operator or the owner in a material or business sense as distinguished from mere social benefit or nominal or incidental contribution to expenses. It has generally been held that payment for transportation is made: (1) When the carriage is of a prospective purchaser of property which the automobile host has for sale and the trip is made for the purpose of inducing a sale (Connett v. Winget,
By the weight of authority, the sharing of the cost of gasoline and oil consumed on a trip taken for *191
mutual pleasure or social purposes does not transform into a passenger one who without such exchange would be a guest, and is not "payment" for transportation within the meaning of the Ohio Guest Statute (Section 6308-6, General Code), so as to make the automobile host liable to such guest in the absence of wilful or wanton misconduct. 4 Blashfield Cyclopedia of Automobile Law and Practice (Perm Ed.), 79, Section 2292;McCann v. Hoffman, supra; Master v. Horowitz,
It must be admitted that there is some confusion in the decisions of the courts as to what constitutes either a "guest" or a "passenger" under a guest statute so far as that status is determined by actual payment of the expenses or a share of the expenses of the trip to the motorist or automobile host by the person accepting the ride. But nearly all the decisions on this subject may be reconciled when the test is applied as to whether the trip has a business or social aspect. A study of the cases discloses that whenever the person paying for gasoline, oil or other automobile expenses is held to be a passenger, it appears that the contract for transportation bears one or more of the indices of a business arrangement, even though the ultimate purpose may be for pleasure.
For instance, one who with two others agreed in advance to share with the owner of the automobile the expense of gasoline and oil on a planned motor trip *192
from Omaha to Florida and return, and did contribute to a fund from which such expenses were paid, is a passenger and not a guest within the Florida statute exempting from the operation thereof persons making payment for their transportation.Teders v. Rothermel,
One who approached another, a stranger, advising the latter that she desired to make a trip from Seattle to Rockport, that she had no means of transportation, and that she would gladly share expense with any one making the trip who would take her along, which arrangement was made with such other, was found by a jury to be a passenger and not a guest, and a verdict and judgment in her favor based upon such relationship was not set aside. Potter v. Jaurez,
In the case at bar, the proposal of the plaintiff to pay her share of the gasoline and oil on this trip, which was purely social in nature, makes her arrangement with the defendant fall within the class of cases above mentioned wherein the proposal amounts to a social courtesy and not a business contract for transportation, and does not serve to remove her from the status of "guest."
As above noted, the case of Dorn, Admr., v. Village of NorthOlmsted, supra, is to be distinguished from the case at bar. The operative facts in that case indicate a situation wherein the trip was made by the passenger at the request of the driver for the sole accommodation and benefit of the latter, namely to point out to him the place of his desired destination. This, under the authorities heretofore cited, is regarded as "payment" by the passenger for the transportation and makes the driver liable to the passenger for want of ordinary care in the operation of the automobile.
Taking the evidence of plaintiff in this case as true, it does not show the relationship of passenger and carrier *194 but that of guest and host, and does not entitle the plaintiff to recover. The trial court erred in not sustaining the motion of defendant to direct a verdict in his favor.
The judgment of the Court of Appeals is reversed, and final judgment is entered for the defendant.
Judgment reversed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, ZIMMERMAN and BETTMAN, JJ., concur.