Dougherty v. Hall

• Citation: 45 N.E.2d 608,70 Ohio App. 163
• Parties: DOUGHERTY v. HALL.
• Decision Date: 16 October 1942
• Court: Ohio Court of Appeals

45 N.E.2d 608

70 Ohio App. 163

DOUGHERTY v. HALL.

Court of Appeals of Ohio, Ninth District, Summit.

October 16, 1942

Syllabus by the Court.

1. A person who rides in an automobile of another from such person's home to his place of work and return, under a verbal arrangement whereby he is to pay, as his share of the cost of the operation of such automobile, a reasonable stipulated weekly sum of money to the owner and operator thereof, is not a guest but makes 'payment therefor' within the meaning of Section 6308-6, General Code.

2. Where such person is injured in an automobile collision while being returned from work to his home in such automobile after a departure from the usual course had been made by the driver, a jury finding that such person is not a guest at the time of the collision within the meaning of the Ohio Guest Statute is warranted.

3. In an action brought against the driver of an automobile to recover damages for the death of a person riding therein, a special request to charge before argument that the automobile trip must have been made for a purpose common to both such person and the driver as a prerequisite to finding such person not to be a guest, is erroneous and should be refused.

4. It is for the jury to determine whether the negligence of the driver of an automobile is the proximate cause of the death of a passenger in such automobile, where the evidence shows the passenger was injured as a result of the negligence of the driver and died while being operated upon for such injuries, when a physician, unaware of the fact that such passenger had a persistent thymus gland, administered ether.

5. In such case, it is not error for the trial court to refuse a special request of the driver to charge before argument that no recovery could be had 'if * * * the presence of the enlarged thymus gland could not have been reasonably anticipated or foreseen' by the driver.

Smoyer, Kennedy, Smoyer & Vogel, of Akron for appellee.

Slabaugh Seiberling, Huber & Guinther, of Akron, for appellant.

STEVENS, Judge.

The action filed in the Court of Common Pleas was for the recovery of damages because of the alleged wrongful death of the decedent, John B. Ferguson.

The evidence discloses that for several years prior to January 6 1940, the defendant had been transporting the decedent from his home to his place of employment at the Goodyear Tire & Rubber Company in Akron, Ohio, and from his place of employment to his home, in an automobile owned and operated by the defendant, Hall, under a verbal arrangement whereby Ferguson paid to Hall 75 cents a week as his share of the cost of gasoline, oil and parking, incidental to the operation of said automobile.

On January 6, 1940, as the result of an alleged negligent collision in which Hall's car was involved, Ferguson, who was riding in said automobile, sustained a fractured leg, jaw, and nose, and certain abrasions and contusions. Ferguson was immediately taken to a hospital, where he was attended by Dr. Sharp. In the procedure for the reduction of the fractures sustained by him, Dr. Sharp ordered the administration of ether as an anaesthetic, and, while Ferguson was under the influence of said anaesthetic, he died on the operating table. A post mortem examination disclosed that Ferguson had an unsuspected persistent thymus gland, and the evidence showed that the presence of such gland in an adult frequently results in death under ether anaesthesia. No attempt was made by the plaintiff to prove wilful and wanton misconduct of defendant, reliance being placed upon his claim that decedent was not a guest in said automobile, and that hence the defendant was liable for the consequences of simple negligence, with which he was charged.

The case was presented to a jury, which at the conclusion of the trial returned a verdict in favor of the plaintiff, upon which judgment was entered.

Appellant assigns three errors:

1. Error in overruling defendant's motions for judgment in his favor made at different stages of the trial and after verdict, and in refusing to grant a new trial.

2. Improper admission of evidence offered by plaintiff.

3. Error in the refusal of the court to give certain requested written instructions before argument, and in the general charge of the court.

The first assignment of error deals with the motions of the defendant for a directed verdict in his favor made at the conclusion of plaintiff's evidence and at the conclusion of all of the evidence, it being the claim of the appellant that Ferguson was, as a matter of law, a guest riding in the automobile of Hall, and, as such, came within the provisions of the Ohio Guest Statute, Section 6308-6, General Code. That statute provides 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.'

The Supreme Court of Ohio in the case of Dorn, Adm'r v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11, 12, has defined a 'guest' as follows: '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.'

Our attention has been called by counsel for the appellant to the cases of Iles v. Lamphere, 60 Ohio App. 4, 18 N.E.2d 989; Snyder v. Milligan, 52 Ohio App. 185, 3 N.E.2d 633; Casper v. Higgins, 54 Ohio App. 21, 6 N.E.2d 3; Ernest v. Bellville, 53 Ohio App. 110, 4 N.E.2d 286; and Voelkl v. Latin Adm'r, 58 Ohio App. 245, 16 N.E.2d 519.

In the first two cases there appears to have been no benefit, pecuniary or otherwise, conferred upon the driver by the passenger. The third case was in part decided upon the conclusion that '2. The fact that the student contributed a few dollars to a fund out of which the instructor received a portion of his compensation, is too remote a consideration to form a basis for a claim that the student was a passenger for hire.'

The fourth and fifth cases involved gratuitous payments made by the passenger to the driver, and also showed the absence of any contractual relationship between the driver and the passenger.

The evidence in the instant case shows a contract of long standing between Hall and Ferguson, whereby Ferguson was to pay 75 cents a week for his transportation to and from work.

In determining whether or not Ferguson was a guest, two questions must be answered: 1. Had Ferguson made any return to or conferred any benefit upon Hall

other than the mere pleasure of his company, or had he agreed so to do? 2. Was any purpose of Ferguson's being served at the time of the accident?

The mere statement of the first question, under the provisions of the statute and under the definition of the term 'guest' as announced by the Supreme Court in the Dorn case, supra, indicates that Ferguson could not thereunder be held to be a guest, because he was not being transported in the defendant's motor vehicle, without payment therefor, but on the contrary he was making a return to or conferring a benefit upon the driver of the motor vehicle by the payment of what the parties had agreed was a sufficient compensation for his transportation. In connection with the second question above posed, counsel for defendant (appellant) contend there must have been a common purpose between Ferguson and Hall in order to remove Ferguson from the guest class.

If the law be that there must exist a common purpose between the driver and the occupant of the automobile in order that the occupant be removed from the operation of the Guest Statute which we query, it is clear in this case that Ferguson and Hall did have a common purpose at the time of the accident; for Hall and Ferguson were at the time of the accident going to their respective homes, and, because Hall was transporting Ferguson to his home at the time of the accident in return for the compensation received by him, there is no question in the minds of the...