O'Hagan v. Byron
| Citation | 33 A.2d 779,153 Pa.Super. 372 |
| Decision Date | 13 September 1943 |
| Docket Number | 95-1943 |
| Parties | O'Hagan, Appellant, v. Byron |
| Court | Superior Court of Pennsylvania |
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.
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 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 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, 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 case there was evidence that plaintiff was induced to make the trip for the benefit of her sisters, and consequently she was not a guest as that term is used in the Ohio statute.
In Dorn v. Village of North Olmsted, supra, it was held that where a driver of an automobile invited another to accompany him for the sole purpose of pointing out to the driver the location of a certain house, such invitee was not a guest within the purview of section 6308-6 of the General Code of Ohio. In Beer v. Beer, 52 Ohio App. 276, 3 N.E.2d 702, it was held that a sister, riding in an automobile with her brother, was not a guest within the meaning of the guest statute, § 6308-6, General Code, where she was riding under an agreement whereby she and her sister were to visit their father, she to furnish the gasoline and oil and the brother the automobile. In Beer v. Beer, 134 Ohio St. 271, 16 N.E.2d 413, which involved the same accident, the question was whether the plaintiff was a "passenger for a consideration" as that term was used in a policy of insurance. If she was, she could not recover from the insurance company the unpaid judgment as the policy excluded coverage for "carrying passengers for a consideration." The Supreme Court of Ohio held therein that plaintiff did not come within this provision of the policy, and that it did not follow from the fact she was not a guest that she was necessarily a passenger for a consideration within the exclusion clause. Recovery was allowed. But the court also said : See, also, Bailey v. Neale, 63 Ohio App. 62, 25 N.E.2d 310.
Defendant does not attempt to support the conclusion of the court below that Miss McDonnell was as much the agent of plaintiff as she was of defendant, and that consequently there could be no recovery by plaintiff. The evidence would not justify a finding that plaintiff had a right to share in the control of the automobile at the time of the alleged negligence. Defendant owned the automobile; Miss McDonnell agreed to assist defendant in driving, and while driving she was under defendant's control. Under the facts which were established at the trial there could be no imputation of negligence to plaintiff. Rogers et ux. v. Saxton, 305 Pa. 479, 488, 158 A. 166; Landy v. Rosenstein et al., 325 Pa. 209 213, 188 A. 855; Corse v. Ferguson, 118 Pa.Super. 606, 608, 180 A. 65; Bloom v. Leech, 120 Ohio St. 239, 166 N.E. 137; Hiller et ux. v. Shaw, 45 Ohio App. 303, 187 N.E. 130, 132; Bailey v. Parker et al., 34 Ohio App. 207, 170 N.E. 607, 609.
The second question is now answered by the fact that there was sufficient evidence of negligence in the operation of defendant's automobile to warrant its submission to the jury. As to this the law of the forum controls. See Sudol et ux. v. Gorga, supra, pp. 465, 466; Singer Adm'x, v. Messina, 312 Pa. 129, 135, 137, 167 A. 583; Restatement, Conflict of Law, §§ 380, 595. That the evidence was...
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