Campbell v. Marquis

• Decision Date: 07 March 1960
• Citation: Campbell v. Marquis, 112 Ohio App. 50, 175 N.E.2d 106 (Ohio App. 1960)
• Parties: , 15 O.O.2d 456 CAMPBELL, Appellee, v. MARQUIS, Appellant. *
• Court: Ohio Court of Appeals

Page 50

112 Ohio App. 50

175 N.E.2d 106, 15 O.O.2d 456

CAMPBELL, Appellee, v. MARQUIS, Appellant. ^*

Court of Appeals of Ohio, Fourth District, Jackson County.

March 7, 1960.

Syllabus by the Court

1. In a personal injury action, where there is evidence that plaintiff and defendant, who were brothers-in-law, left their home city to obtain employment elsewhere, that they agreed to use defendant's automobile, the plaintiff to share the cost of gasoline and oil, do some of the driving and make his car available to defendant's wife, that they drove to another city and obtained employment, that after work each day they either returned to their homes or remained at a rooming house in the city of their employment, that, on the day of the injury while defendant was driving them to their home city after they had a few drinks at two bars, plaintiff got into the back seat of the vehicle and went to sleep, and that while they were so traveling defendant had an accident which resulted in the injury to plaintiff, the jury may properly find that plaintiff was a paying passenger in the car at the time of the accident and, under proper instructions by the court on the doctrine of res ipsa loquitur, may properly find that defendant was negligent at the time of the accident.

2. In such case, the court may properly refuse to charge on contributory negligence, where such issue is not raised by the pleadings or the evidence.

3. In such case, any claim of error because of voir dire-examination questions concerning possible ownership of stock in insurance companies is waived, where no objection to such questions is made either during the examination or at the conclusion thereof.

DeLay & DeLay, Jackson, for appellant.

Arlo Chatfield, McArthur, and Benson L. Owens, Jackson, for appellee.

RADCLIFF, Judge.

The parties will be referred to throughout this opinion as they appeared in the trial court. Gould Denny Campbell, the appellee in this court, was the plaintiff in the trial court, and Gilbert Leland Marquis, the appellant herein, was the defendant. The defendant is married to a sister of the plaintiff, and the families have been friends for a number of years.

In May of 1956 both the plaintiff and defendant had been furloughed from their place of employment in the city of Wellston. On Monday, May 14, 1956, the plaintiff and defendant left Wellston to go to Dayton, Ohio, to seek employment. At the time the trip started, it was agreed to use the car owned by the defendant as it was a later model than the car owned by the plaintiff. It was also agreed, at least there is evidence to this effect, that the plaintiff was to share the cost of the gasoline and oil, to do some of the driving and to make his car available to the defendant's wife for errands in and around Wellston. The two men drove to Dayton, Ohio, but were unable to find employment there. They learned of a pipeline construction project near the city of Troy and decided to try to obtain employment there. It appears that the plaintiff had previously worked for the contractor who was making the installation near Troy. Both men were successful in getting employment on the pipeline construction crew at Troy. There is some indication from the testimony that the plaintiff was instrumental in getting the defendant a job as he had disclosed to his employer that the defendant was furnishing the transportation. The plaintiff and defendant drove back to Wellston that evening to get their work clothes and informed their families what had transpired.

On Tuesday, May 15, the plaintiff and defendant drove from Wellston to Troy and worked that day. There is conflict in the testimony as to whether they returned to Wellston the night of the 15th or whether they stayed in Troy at a boarding house. On Wednesday, the 16th of May, they worked all day and drove to Wellston, spending the night there, and returned to Troy early in the morning on May 17. They worked that day and spent the night of the 17th in Troy at a rooming house. Both men worked all day Friday the 18th and drove to Wellston that night. On Saturday, the 19th, they drove back to Troy early in the morning and worked that day. They had expected to work on Sunday but were informed that there would be not work on Sunday, so they decided to drive back to their homes in Wellston be no work on Sunday, so they decided

The plaintiff being assigned a job that required longer hours than those of the defendant did not get off work until 7:30 p. m. Saturday. The plaintiff and defendant then had two or three house which they spent on the town in Troy. During that time, the plaintiff had his dinner and they visited two bars and had a few beers and at least one drink of something stronger, then hamburgers and coffee. They left Troy for Wellston at about 11:30 p. m. Saturday. The plaintiff got in the back seat of the car and went to sleep. The defendant drove to Dayton and there tried to arouse the plaintiff to ask him to drive. He was not successful in waking him. The defendant parked his car and endeavored to get some sleep himself but was unable to do so. The defendant then drove on to Xenia and just beyond Xenia he wakened the plaintiff and asked him to drive. The plaintiff told him to go on as he was doing satisfactorily and went back to sleep. The defendant drove on and, a few miles southeast of Xenia, Ohio, on U. S. Route 35, had an accident which resulted in rather serious injury to the plaintiff.

The plaintiff sued the defendant in the Common Pleas Court of Jackson County, Ohio. The issues were made up by the third amended petition of the plaintiff, wherein he alleges that he was a paying passenger in the car being driven by the defendant, that the defendant was negligent, and that as a result of this negligence the plaintiff was injured and incurred medical bills to the extent of $1,100, and he concludes with a prayer for damages in the sum of $36,100. The answer to the third amended petition alleges that the plaintiff was a guest in defendant's automobile, admits that the defendant was driving, that there was an accident, and that the plaintiff was injured, then denies generally all other allegations not admitted. The reply denies that the plaintiff was a guest in defendant's automobile.

The case was tried to a jury, and a verdict of $10,000 in favor of the plaintiff resulted. After disposition of the motion for a new trial and for judgment notwithstanding the verdict, the defendant perfected his appeal to this court.

The defendant urges nine assignments of error but as pointed out in his brief there are only four questions involved. The answers to these four questions will be dispositive of all the assigned errors. The four questions are:

1. Was the plaintiff a paying passenger or a guest?

2. Was the defendant negligent?

3. Was the plaintiff guilty of contributory negligence?

4. Were the damages excessive or influenced by the injection of insurance into the case?

The first question is whether the plaintiff was a guest in the defendant's car as contemplated by Section 4515.02, Revised Code, or was he a passenger for pay? The importance of this is elemental, as the duty the driver of a car owes to a passenger is entirely different from the duty the driver of a car owes to a guest. The evidence as to the presence of a contractual relationship between the plaintiff and defendant is of course in dispute, but it does raise an issue of fact which should be submitted to the jury under proper instructions. The test that is to be applied in cases of this kind is best set forth, as follows in the second paragraph of the syllabus of Birmelin, Adm'x, v. Gist, Adm'x, 162 Ohio St. 98, 120 N.E.2d 711, 712:

'In such case a mere offer by the rider to pay for the gasoline on a trip or to furnish some other reciprocal favor for the accommodation of the ride does not furnish the basis for a contractual relationship, unless there is evidence that such payment or furnishing formed the basis of such a contractual arrangement as would give the owner or driver a right to recover in an action at law on the offer made by the rider.'

It seems to us that the evidence here warranted the submission of this question to the jury under proper instructions. This view we feel is consistent with the attitude of the Supreme Court as found in the following recent cases: Lombardo v. De Shance, a Minor, 167 Ohio St. 431, 149 N.E.2d 914, 66 A.L.R.2d 1313; Lisner, a Minor, v. Faust, 168 Ohio St. 346, 155 N.E.2d 59; and Redis, a Minor, v. Lynch, 169 Ohio St. 305, 307, 159 N.E.2d 597. The following recent cases of courts inferior to the Supreme Court are cited: Sprenger v. Braker, 71 Ohio App. 349, 49 N.E.2d 958; Galliher v. Campbell, Ohio App., 125 N.E.2d 758; and Elfers v. Bright, 108 Ohio App. 495, 162 N.E.2d 535. We also cite 6 Ohio Jurisprudence (2d), 447, Section 224. An examination of the above authorities leads us to the conclusion that there was an issue of fact raised by the evidence herein that was properly submitted to the jury. The jury having determined that the plaintiff was a passenger for pay rather than a guest, we can find no reason to disturb that finding. The answer to the first question is that the plaintiff was a paying passenger.

The second question as to the defendant's negligence confronts us with the always troublesome question of the doctrine of res ipsa loquitur. It is well to start with the fundamental statements of the doctrine as it is applied in Ohio. Such a statement was succinctly made, as follows, by Chief Justice Marshall in St. Marys Gas Co. v. Broadbeck, Adm'r, 114 Ohio St. 423, 433, 151 N.E. 323, 326:

'It is not a substantive rule of law, and never under any circumstances may it become the ground of a directed verdict. It is a rule of evidence which permits or requires the inference of negligence where an accident occurs under circumstances where, in the ordinary course of events, such accidents do not occur....