Clinger v. Duncan

• Decision Date: 13 March 1957
• Docket Number: No. 34855,34855
• Citation: 2 O.O.2d 31,166 Ohio St. 216,141 N.E.2d 156
• Parties: , 2 O.O.2d 31 CLINGER, Appellee, v. DUNCAN, Appellee; Lemen, Appellant.
• Court: Ohio Supreme Court

Page 216

166 Ohio St. 216

141 N.E.2d 156, 2 O.O.2d 31

CLINGER, Appellee, v. DUNCAN, Appellee Lemen, Appellant.

No. 34855.

Supreme Court of Ohio.

March 13, 1957.

Syllabus by the Court.

1. Section 6308-6, General Code (Section 4515.02, Revised Code), commonly known as the 'guest statute,' being in derogation of the common law, is to be strictly, albeit reasonably, construed.

2. Such section, providing that the operator of a motor vehicle shall not be liable for an injury to a guest, resulting from the operation of the vehicle, while such guest is being transported without payment therefor in or upon such vehicle, unless the injury is caused by the willful or wanton misconduct of the operator, is ordinarily without application where the guest has alighted from the vehicle and is injured by the negligence of the operator while the guest is out of the conveyance. In such circumstances, the rule of ordinary negligence prevails, and in a proper case the trial court may rule as a matter of law that the hostguest relationship did not exist.

3. A municipal ordinance which provides that the motor or engine of a motor vehicle shall not be permitted to run while such vehicle is standing on the street, unless a competent person is in charge of and in and upon such vehicle, is a valid enactment containing a specific requirement for the safety of others, and one who comes within the purview of such ordinance and violates it is negligent as a matter of law.

4. In a tort action, wherein the above ordinance becomes material and is admitted in evidence, it is proper to elicit from the defendant on cross-examination that he was charged in a criminal proceeding with a violation of the ordinance and pleaded guilty to the charge.

5. Generally, negligence and proximate cause are questions for the determination of a jury under appropriate instructions of the court, and in a situation where the owner-operator of a motor vehicle leaves it standing with the motor running, and a guest-rider therein inadvertently and unintentionally or in fright and excitement moves the gear-control lever, whereby the vehicle is set in motion and another is injured thereby, the questions of negligence and proximate cause are correctly left to the jury, and where such issues are submitted free from prejudicial error and the jury finds that the owner-operator was negligent and that such negligence was the proximate cause of the injury, that determination will not be disturbed on appeal.

Inez M. Clinger was injured by an automobile owned by Emma G. Lemen. She instituted the present action in the Court of Common Pleas of Summit County against Lemen, hereinafter referred to as defendant, and Ada E. Duncan to recover damages for such injuries upon the claim that their joint negligence was directly responsible therefor. Plaintiff was awarded a verdict and judgment in the trial court against defendant alone, and on appeal on questions of law to the Court of Appeals that judgment was affirmed.

The allowance of a motion to require the Court of Appeals to certify the record brings the cause here for decision on the merits. Additional facts are stated in the opinion.

Mark F. McChesney and Paul A. Weick, Akron, for appellee Inez M. Clinger.

Hershey, Hatch, Browne, Wilson & Cook, Akron, for appellee Ada E. Duncan.

Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellant.

ZIMMERMAN, Judge.

In the early afternoon of December 30, 1952, defendant owned and was driving a 1952 Pontiac two-door sedan equipped with a Hydramatic transmission controlled by a lever under the steering wheel. Seated next to her was her cousin, Duncan, and sitting next to Duncan on the outside was plaintiff. The car was stopped on the street near the curb in front of the home of Frances G. Hunsicker in the city of Akron. By prearrangement the four women planned to visit a Girl Scout camp in defendant's automobile and later attend a social affair. Plaintiff left the car to summon Hunsicker. The latter indicated from her home that she was ready, whereupon plaintiff returned to the car with the intention of occupying the rear seat and allowing the other three women to occupy the front seat. To enable plaintiff to push forward one side of the divided back of the front seat and reach the rear seat, defendant got out of the automobile on the driver's side, leaving the motor running and failing to set the hand brake, and the deduction is inescapable that Duncan, in attempting to move over to the left, unintentionally came in contact with the lever controlling the transmission and pushed it into the 'reverse' position, and that during such activity one of her feet may have pressed on the accelerator. The two doors of the automobile opened from the back toward the front. Defendant was standing behind the left open door and plaintiff was standing behind the right open door, with her right hand on the back of the front seat preparatory to re-entering the vehicle. Due to a sudden movement of the car backward both plaintiff and defendant were caught by the doors and thrown to the street. Duncan, excited and frightened by this unexpected happening undoubtedly grasped the lever and manipulated it in such a way as to cause the automobile to start forward. The car struck plaintiff lying in the street, shoved her for a short distance and then ran over her right leg. In consequence she suffered an extensive and deep scalp laceration and compound fractures of the tibia and fibula of her right leg, in connection with which there were subsequent complications.

On the trial of the action, the trial court, apparently following the case of Eshelman v. Wilson, 83 Ohio App. 395, 80 N.E.2d 803, ruled, as a matter of law, that plaintiff was not a guest at the time of her injuries, within the terms and intendment of Section 6308-6, General Code, Section 4515.02, Revised Code, commonly known as the 'guest statute.'

Section 120, Chapter 24 of the Code of the City of Akron, was admitted in evidence and reads as follows:

'The motor or engine of a motor vehicle or motorcycle shall not be run or permitted to run when such vehicle or motorcycle is standing in any street or highway unless there is a competent person in charge of and in and upon said motor vehicle or motorcycle.'

With reference to the quoted ordinance, the court told the jury that if a violation thereof on the part of defendant was proved by the greater weight of the evidence, she was negligent as a matter of law.

Also left to the jury for its determination, in a special instruction and in the general charge, was the question of proximate cause.

Defendant, through her counsel, contends that the guest statute applies in the present case, and that, therefore, she was entitled to a directed verdict or to judgment notwithstanding the verdict, and that, otherwise, she was denied a fair trial because of the intervention of reversible error during the trial.

Applicable Section 6308-6, General Code, Section 4515.02, Revised Code, reads 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 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.'

In the absence of the so-called guest statute, the general rule is that the person operating or responsible for the operation of a motor vehicle must use reasonable and ordinary care for the safety of a guest therein and is liable for injuries proximately caused by negligence in the handling of the vehicle. 60 C.J.S., Motor Vehicles, § 399 (1), p. 977.

Guest statutes, like the one in Ohio, being in derogation of the common law, are to be strictly, albeit reasonably, construed. Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217; Vest v. Kramer, 158 Ohio St. 78, 84, 107 N.E.2d 105, 108; 60 C.J.S., Motor Vehicles, § 399(3), p. 966.

In relation to the instant case the key words in Section 6308-6, General Code, are, 'while being transported * * * in or upon said motor vehicle.' (Emphasis supplied.)

The word, 'transport,' in its ordinary and accepted meaning implies movement--the carrying or conveying of persons or things from one place to another.

In the opinion of a majority of this court, when plaintiff left defendant's automobile to summon Hunsicker, she temporarily, at least, removed herself from the category of one being transported in or upon a motor vehicle and would not have resumed a guest status until she again entered the car. As the facts show, she never got that far.

To reach a contrary conclusion, it is necessary to supply the statute by judicial fiat with words and a meaning that the General Assembly did not see fit to adopt.

Strongly supporting our position is the recent case of Boyd v. Cress, 46 Cal.2d 164, 293 P.2d 37, 39. There the host-driver stopped his automobile at the side of the road apparently to examine the tires and to stretch and relax briefly. His guest stepped out of the right side of the vehicle, leaving the right door open, and was struck by the door and injured when the car suddenly rolled backward. California has a guest statute similar to ours. The guest sued his host for damages grounded on negligence and was successful in the trial court, and the Supreme Court of California in affirming the judgment for plaintiff had the following to say in the course of the opinion:

'This consistent line of authority establishes the rule that the protection of the guest statute extends only to injuries suffered 'during such ride' in the sense that the plaintiff remained in or upon the vehicle at the time of the accident. After the guest steps out of the automobile, he enters into a pedestrian or other nonguest status. * * * It is not...