O'Hagan v. Byron, 95-1943

• Court: Superior Court of Pennsylvania
• Writing for the Court: Rhodes, J.
• Citation: 33 A.2d 779,153 Pa.Super. 372
• Parties: O'Hagan, Appellant, v. Byron
• Docket Number: 95-1943
• Decision Date: 13 September 1943

33 A.2d 779

153 Pa.Super. 372

O'Hagan, Appellant,
v.
Byron

No. 95-1943

Superior Court of Pennsylvania

September 13, 1943

April 27, 1943, Argued

Appeal from judgment of C. P. Allegheny Co., Jan. T., 1939, No. 1273, in case of Mary Lorine O'Hagan v. Mrs. Audrey O'Hagan Byron.

Trespass for personal injuries. Before McDonald, J.

Verdict for plaintiff in sum of $ 1500. Judgment entered for defendant n.o.v. Plaintiff appealed.

Judgment reversed.

J. Thomas Hoffman, for appellant.

John H. Sorg, for appellee.

Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt, Kenworthey and Reno, JJ.

OPINION [33 A.2d 780]

[153 Pa.Super. 373] Rhodes, J.

This trespass action arose out of an automobile accident in Ohio. Two questions are presented to us on appeal by plaintiff: (1) Was plaintiff a guest as that term is used in the law of Ohio? (2) Was the jury warranted in finding negligence for which defendant is responsible in damages?

At the first trial a compulsory nonsuit was granted on the ground that section 6308-6 of the General Code of Ohio, commonly known as the guest statute, precluded recovery. On plaintiff's motion the nonsuit was removed and a new trial granted. At the second trial the jury returned a verdict for plaintiff. Plaintiff [33 A.2d 781] asked for a new trial because of the inadequacy of the verdict; defendant moved for judgment n.o.v. The court in banc granted defendant's motion and entered judgment accordingly. Plaintiff then appealed.

The accident happened on May 30, 1938, in Massillon, Ohio, and plaintiff was severely injured. Plaintiff and defendant are sisters. They left Pittsburgh for Chicago in defendant's automobile to ascertain the condition of their brother who was ill. The trip was arranged by defendant and a third sister who agreed to pay the [153 Pa.Super. 374] expenses. Both wanted plaintiff's opinion of the physical condition of their brother, and plaintiff was advised accordingly of their decision that she was to make the trip. Provision being made for her expenses, she agreed to comply with her sisters' request. Defendant testified: "A. .... I asked her particularly to come with me so she could back up my opinion as to his condition." Estelle McDonnell, a friend of defendant, was to assist defendant in driving as far as Gary, Indiana, and likewise on the return trip from Gary to Pittsburgh. Miss McDonnell, having rejoined plaintiff and defendant at Gary on the return trip, was driving, at defendant's request, through Massillon, Ohio, about 11:50 P. M., when the automobile left the right side of the highway, jumped the curb, and struck a telegraph pole. The car was demolished by the impact with the pole which was severed. The night was clear and the highway was dry. There was no evidence that the accident did not arise from the want of care on the part of the driver.

Defendant's responsibility for plaintiff's harm is determined by the law of Ohio. Mike et al. v. Lian, 322 Pa. 353, 185 A. 775; Kerstetter v. Elfman, 327 Pa. 17, 192 A. 663; Sudol et ux. v. Gorga, 346 Pa. 463, 31 A.2d 119; Restatement, Conflict of Laws, § 379. The Ohio statute (Page's Ann. Gen. Code, § 6308-6; Throckmorton's Ann. Code of Ohio 1934, § 6308-6) provides: "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 first question is whether plaintiff came within the terms of this statute; and for a construction of the statute we look to the Ohio cases. Mackey v. Robertson, [153 Pa.Super. 375] 328 Pa. 504, 506, 195 A. 870. Protection of the statute is not given to the owner, operator, or person responsible for the operation of a motor vehicle from liability for ordinary negligence while transporting one who is not a guest, or a guest who is being transported for payment. See Voelkl v. Latin, 58 Ohio App. 245, 16 N.E.2d 519, 522; Delk v. Young, Ohio App., 35 N.E.2d 969, 971; Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140, 142; Kerstetter v. Elfman, supra, 327 Pa. 17, 19, 20, 192 A. 663.

In Dorn v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11, at page 14, the Ohio Supreme Court adopted the following definition: "'A guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a car, 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 car other than the mere pleasure of his company.'" See, also, Dougherty v. Hall, 70 Ohio App. 163, 45 N.E.2d 608, 610.

In Voelkl v. Latin, supra, 58 Ohio App. 245, 16 N.E.2d 519, at page 522, it was said: "A controlling factor in determining whether such a one is a guest is whether there was a consideration for the transportation, or the relationship of master and servant existed between the passenger and the operator, or the passenger became such for the benefit of the operator, or the passenger was being conveyed for the mutual benefit of the operator and the passenger." ^[1] In the present...