Eshelman v. Wilson
| Decision Date | 26 April 1948 |
| Parties | ESHELMAN v. WILSON. |
| Court | Ohio Court of Appeals |
Hyers Leyland & Patterson, of Dayton, for plaintiff-appellee.
Landis Ferguson, Bieser & Greer, of Dayton, for defendant-appellant.
The appeal is on questions of law from a judgment for the plaintiff entered on a verdict of a jury in her behalf. The action was for damages for personal injuries claimed to have been suffered by plaintiff when struck by the automobile of defendant.
The essential facts are that plaintiff and the defendant together with other women, were in attendance at a social gathering and the defendant had transported the plaintiff to and from the place of the meeting. Preparatory to beginning the return trip, the defendant took her place to the left, back of the wheel, another guest to her right and the plaintiff to the extreme right of the front seat. The defendant had some difficulty in finding her keys, whereupon the plaintiff alighted from the car and stepped away from it about two feet. The car had been left in reverse gear and without releasing the brake defendant stepped on the starter with the result that the car moved backward for a short distance and stopped. In its movement it struck and injured the plaintiff.
The petition of the plaintiff was predicated upon the negligence of the defendant in the operation of her car. The answer was a general denial and there was no suggestion in either of the pleadings of guest, or passenger, relationship of the plaintiff. At the conclusion of plaintiff's evidence defendant moved for a directed verdict, 'For the reason that the plaintiff has failed to show any wilful or wanton misconduct on the part of the defendant, the evidence showing that she was being transported in defendant's automobile from the bridge game to her home at the time of the injury and that the injury was due to the operation of the defendant's motor vehicle, and it was all within the course of this transportation from one point to another and covered by the Guest Statute of the State of Ohio.' The court overruled this motion and the cause was submitted to the jury upon the theory of plaintiff's petition. The one error assigned is the refusal of the trial judge to sustain the motion for a directed verdict.
The single question raised on this appeal is whether or not at the time of plaintiff's injury she was a guest of the defendant. The answer to this question depends upon the construction of the Ohio Guest Statute, G.C. § 6308-6:
'The owner, * * *, responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to * * * a guest, while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries * * * are caused by the wilful or wanton misconduct of such operator, * * * of said motor vehicle.' The trial judge held, and it is contended here by the appellee, that inasmuch as the plaintiff, at the time that she was injured, was not in or upon the motor vehicle of the defendant she was not a guest of the defendant. It is the claim of the defendant-appellant that the section of the code should not be limited to the requirement that the person transported be in or upon the motor vehicle in which she is riding but that inasmuch as the parties had begun their return trip when they took seats in the automobile, and the stepping aside of the plaintiff was only a temporary interruption of the trip, it must be said as a matter of law that the plaintiff was being transported as a guest at the time that she was struck. The claim of the defendant is that the plaintiff, admittedly a guest of the defendant to and from the place of meeting, continued as her guest even as a passenger in a public carrier will be held to be such passenger while in a zone near to the public conveyance preparatory to entering it.
As there is no material factual dispute in the record the judgment rests entirely upon the proper construction of the guest statute. It is our opinion that the trial judge was correct in his determination of its meaning and its limitation. To hold as the defendant contends would require the elimination from the statute of the words 'in or upon said motor vehicle.' It is a rule of construction that every word in a statute shall be given meaning, if possible. The plaintiff was neither in nor upon the motor vehicle of the defendant at the time that she was struck and was not within the meaning of the controlling statute a guest of the defendant.
Counsel have been helpful in the colation of authorities which have any relation to our question. Admittedly, there is none in point in Ohio.
Massachusetts, which has no statutory guest law but which has evolved a like principle from the common law, supports the claim of the defendant that one may be a guest of the operator of an automobile while in the venture of the transportation although not in or upon the motor vehicle. Thus, in Bragdon v. Dinsmore, 312 Mass. 628, 45 N.E.2d 833, 146 A.L.R. 680, 'where defendant motorist had arranged gratuitously to transport plaintiff and his wife to a hall * * * and thereafter defendant was to drive plaintiff and his wife home, and, as defendant was parking his automobile at the hall, defendant caused the automobile to strike plaintiff who had alighted to direct defendant,' it was held that plaintiff's relationship as defendant's guest had not ceased at the time of the accident. And in Ruel v. Langelier, 299 Mass. 240, 12 N.E.2d 735, it was said that:
'The degree of automobile owner's duty to guest does not depend on latter's physical position or whether she was in or outside automobile when injured, but on whether owner's act, claimed to be negligent, was performed in course of carrying out gratuitous undertaking assumed.'
The defendant was taking four women to their homes. He attempted to start his automobile in the snow and finding that he could not do so, requested that someone get out and push. The plaintiff did so and was injured. A significant statement is made in the opinion in this case in 12 N.E.2d at page 736, made the subject of the 4th syllabus:
It would seem, a fortiori, that if Massachusetts had a statute such as Ohio, limiting a guest in negligence cases to one who is being transported without payment therefor in or upon said motor vehicle, that it would have reached a different judgment. Another Massachussetts case grounded upon the same principle as the two cases just cited but which might be determined in the same way in Ohio is Adams v. Baker, 317 Mass. 748, 59 N.E.2d 701. The plaintiff, riding as a gratuitous guest, was alighting from the automobile when injured. She had one foot on the running-board of the car and the other in a hole of concrete. The writer of the opinion said:
'Upon the evidence the jury would have been obliged to find that the plaintiff was partly in or upon the defendant's vehicle at the time of the accident, * * *.'
Other cited Massachussetts cases are: Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918C, 264, Ann.Cas. 1918B, 1088, and Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002, none of which is helpful on the narrow question presented here.
Appellant also cites two Michigan cases Brown v. Arnold, 303 Mich. 616, 6 N.W.2d 914, and Hunter v. Baldwin, 268 Mich. 106, 255 N.W. 431. The Michigan Guest Statute reads, '[Being] transported by the owner or operator of a motor vehicle as his guest,' Comp.Laws 1929, § 4648, and does not carry the limiting words found in the Ohio Statute. In Brown v. Arnold, supra, the plaintiff who had been a guest of the defendant reached her home which was the end of the trip. She had alighted and taken at least one step away from the vehicle when defendant started it suddenly, causing the rear wheels to skid toward the curb and to strike the plaintiff. The court held that the transportation had ceased and that the plaintiff was not a guest at the time of her injury. Appellant urges that this case is authority by implication for her contention. We do not so read the case, but if it be granted, it would be so determined upon a statute which is materially different from the one controlling the instant cause. The Court further referred to decisions relied upon by the defendant which hold that ...
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