Letterel v. Cerniglia

274 A.D. 896 | N.Y. App. Div. | 1948

In an action to recover damages for personal injuries sustained by the infant plaintiff while riding in an automobile alleged to have been owned by appellant, her stepfather, judgment in favor of respondent, entered on the verdict of a jury, reversed on the law, with costs, and the complaint dismissed on the law, with costs. Findings of fact implicit in the verdict are affirmed. The accident complained of occurred in Ohio. The trial court decided, as a matter of law, that the infant plaintiff was not a guest, within the meaning of section 6308-6 of the Ohio General Code, which provides in effect that the owner, or person responsible for the operation of a motor vehicle, shall not be liable for injury to a guest, transported without payment, unless such injuries are caused by willful or wanton misconduct. Coneededly, no willful or wanton misconduct was established, or claimed. The infant plaintiff, aged eleven, was accompanying her mother and appellant, her stepfather, on a motor trip from Tennessee to New York. The purpose of the trip by appellant was to find living quarters for his wife and the infant plaintiff in New York. In our opinion, on the conceded facts, the infant plaintiff was a guest within the meaning of the Ohio statute, as a matter of law, and the statute bars recovery against appellant, in the absence of willful or wanton misconduct on his part. Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.