Dorn v. Village of North Olmsted

• Decision Date: 23 March 1938
• Docket Number: 26668.
• Citation: 14 N.E.2d 11,133 Ohio St. 375
• Parties: DORN v. VILLAGE OF NORTH OLMSTED.
• Court: Ohio Supreme Court

14 N.E.2d 11

133 Ohio St. 375

DORN v. VILLAGE OF NORTH OLMSTED.

No. 26668.

Supreme Court of Ohio

March 23, 1938

Syllabus by the Court.

1. Where a person is invited to get into a motor vehicle by the driver thereof for the sole purpose of pointing out to the latter the location of a certain house a short distance away and where the ride is wholly incidental to the purpose of showing the driver the location of such house, the driver owes to such person the duty of exercising ordinary care in the operation of such motor vehicle.

2. Such an invitee riding in a motor vehicle under such circumstances is not a guest within the purview of section 6308-6 General Code.

3. In such a situation the law of negligence applicable before the enactment of section 6308-6, General Code, known as the guest statute, still governs.

4. Within the meaning of section 6308-6, General Code, a guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a motor vehicle, who accepts such hospitality and takes a ride either for his own pleasure or on his business without making any return to or conferring any benefit upon the driver of the motor vehicle other than the mere pleasure of his company.

This was an action for wrongful death and damage to the estate of William Wilkinson. It was filed in the court of common pleas of Cuyahoga county against Frank D. Morris and the village of North Olmsted.

It appears that on the afternoon of the accident the defendant Morris decided to drive to the home of a man by the name of Herbert Shindler, on a matter of personal business. Not knowing exactly where Shindler lived, Morris stopped at the village drug store to inquire of the druggist respecting the locality of Shindler's residence. The druggist at the time was busy and the defendant stepped outside where Wilkinson and another man, by the name of Pat Alford, were standing. Morris was acquainted with both of these men. He asked them if they could tell him where Herbert Shindler lived. Upon receiving an affirmative reply, the defendant said, 'Boys, come along with me, and show me where it is.' They said 'All right,' and got in defendant's car.

Thereafter, while defendant was driving westwardly on Lorain road and approaching the Shindler residence, his automobile was struck from behind by a bus owned by the village of North Olmsted, and in this collision Wilkinson received injuries from which he subsequently died. The petition of the plaintiff charged acts of negligence against both the defendant Morris and the driver of the bus owned by the village of North Olmsted.

The jury returned a verdict for the plaintiff, Frederick W. Dorn, as administrator of the estate of William Wilkinson, deceased, in the sum of $5,000 against the defendant Frank D. Morris. There was no verdict against the village of North Olmsted.

A stipulation had been entered into between counsel for all parties that if the jury found for the plaintiff, the amount of the judgment should be fixed at $2,000. After the verdict the court of common pleas entered judgment for the plaintiff against the defendant Morris for the sum of $2,000.

Thereafter the cause was taken to the Court of Appeals by the defendant, Frank D. Morris, where the judgment of the court of common pleas was reversed on the ground that it was manifestly against the weight of the evidence.

A motion to certify the record to this court for review was filed by the defendant, Morris, who contends the Court of Appeals should have entered final judgment in his favor. A cross-motion to certify was filed by the plaintiff. Both motions were allowed.

Squire, Sanders & Dempsey, of Cleveland, for appellant Frank D. morris.

Sayre, Vail & Dorn, of Cleveland, for appellee.

MYERS Judge.

What new legal relationship, if any, was created between the defendant Morris and Wilkinson by reason of the latter getting into the defendant's automobile for the purpose of pointing out to the defendant where a certain man by the name of Shindler lived? Plaintiff, as the administrator of the estate of Wilkinson, contends that Wilkinson was a passenger for compensation, while the defendant contends that he was a guest within the meaning of section 6308-6, General Code, generally referred to as the guest statute of Ohio.

The Court of Appeals reversed the judgment of the court of common pleas on the weight of the evidence. But Morris, hereinafter referred to as the defendant, urges that the appellate tribunal should have gone further and rendered final judgment in his favor on the ground that Wilkinson was a guest within the meaning of the statute, which 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 charging the jury, the trial court stated, and it is conceded, that there was no evidence tending to prove defendant Morris guilty of willful or wanton misconduct. The court submitted the question as to whether Wilkinson was a guest under the statute and, if the jury should find that he was not a guest, whether the defendant had failed to exercise ordinary care for the safety of Wilkinson.

An examination of legal authorities discloses that various terms are used to designate the different capacities in which a person may be riding in the automobile of another. The terms most commonly used are 'guest' and 'passenger,' and less frequently 'licensee' and 'invitee.' The liability of an owner or driver of an automobile for negligence toward a person being transported in such automobile is usually, but not always, determined by the fact whether such person is a guest or a passenger for hire.

In seeking to determine whether Wilkinson, when he got into the defendant's automobile, legally came within the definition of any one of the foregoing terms, we at once rule out the term 'licensee.' Wilkinson was not a mere licensee in the defendant's automobile. He was invited into the car for a definite purpose.

In the instant case, Wilkinson was not a licensee but an invitee for the benefit of the defendant. But the invitation extended by the defendant was not primarily to give Wilkinson and Alford a ride in the automobile. The invitation was tendered in order that the two men might show the defendant where Shindler lived. The language of the defendant was, 'Boys, come along with me, and show me where it is.' The invitation was not primarily to accept a ride, but to do a favor for the defendant. It was not a transportation transaction that was being entered into. The ride was wholly incidental to the main purpose of showing the defendant where Shindler lived.

Under such circumstances, was Wilkinson a guest within the purview of section 6308-6, General Code? In construing the phrase, 'a guest while being transported without payment therefor,' we are obliged to consider not only the ordinarily accepted meaning of the words used, but also such interpretation as may have been applied to such words under the common law or similar statutes.

Massachusetts has no guest statute, but the courts of that state, under common law, have evolved a guest rule by judicial decision. In Lyttle v. Monto, 248...