Henline v. Wilson

• Decision Date: 03 February 1960
• Parties: , 15 O.O.2d 244 HENLINE, Appellee, v. WILSON, Appellant. *
• Court: Ohio Court of Appeals

Page 515

111 Ohio App. 515

174 N.E.2d 122, 15 O.O.2d 244

HENLINE, Appellee, v. WILSON, Appellant. ^*

Court of Appeals of Ohio, Ninth District, Summit County.

Feb. 3, 1960.

Syllabus by the Court

1. The fact that the injured occupant of an automobile stands in a family relationship to its driver does not exclude the occupant from being a guest, nor does it make him one regardless of circumstances.

2. An owner of a motor vehicle, while riding in his own vehicle when it is being driven by one who stands in a family relationship to him, may, under proper circumstances, be considered a passenger in such motor vehicle.

3. Whether the owner of a motor vehicle, who is riding in such vehicle then being driven by his son-in-law, is a passenger or a guest, within the terms of the guest statute, depends upon the facts which give rise to the operation of the motor vehicle by the son-in-law.

Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellant.

Raymond J. McGowan and William R. Ferguson, Akron, for appellee.

HUNSICKER, Judge.

This is an appeal on questions of law from a money judgment entered on the verdict of a jury.

Charles Henline, the appellee herein, a long-distance truck driver for Roadway Express, Inc., was the owner of an automobile which, on April 10, 1958, was being operated by his son-in-law, George H. Wilson, the appellant herein. Charles Henline was at that time riding in the front seat of his own automobile, next to his son-in-law, the driver thereof. No other person was in the automobile, which was then being driven east on East South Street, in Akron, Ohio, near its intersection with Johnson Street.

As Wilson, who was driving about 50 miles an hour, drove over a railroad crossing near this intersection, he turned suddenly to the left, toward Johnson Street, lost control of the motor vehicle, and crashed into a telephone pole. The result of this act on the part of Wilson was severe injury to his father-in-law, and the almost total demolition of the automobile.

Henline and Wilson had, on the evening prior to the accident, left the Henline home, where Wilson and his wife were visiting, in order to drive another long-distance truck driver to the Roadway Express terminal located on Archwood Avenue. From there, in the company of another party, they went to a cafe. At this cafe, Henline and Wilson, who was only 20 years of age, drank a 'shot' of whiskey. Wilson left this cafe to go to the Henline home to report to Wilson's wife, Henline's daughter, and to take her some 'onion rings.' Wilson then, driving Henline's automobile, returned to the cafe, drank another 'shot' of whiskey; then Wilson, Henline and the other party left for another cafe. Henline said at each cafe he had two drinks of whiskey with ginger ale. Wilson said he had two drinks of whiskey with ginger ale at each cafe and, in addition, bottle of beer at the second cafe.

Wilson, who had the keys to Henline's automobile when they left the cafe, got in the driver's seat of the Henline automobile, and Henline took the seat next to him. Henline said they were going 40 to 45 miles per hour on East South Street. Wilson said he was traveling 50 miles per hour. Only once did Henline say anything as to Wilson's driving, while going toward the point where the accident occurred, and that was to call his attention to a red light at the intersection of East South and Grant Streets.

Wilson said he was not intoxicated but 'felt his drinks' a little. Henline said that he, Henline, was in possession of all his mental and physical faculties as they left the second cafe to go to Henline's home. The time that elapsed from entering the first cafe until the accident was about 3 to 3 1/2 hours.

In this appeal from the judgment in favor of Henline, counsel for Wilson claim that the trial court erred in the following respects:

In overruling defendant's motion to withdraw a juror and declare a mistrial because of the misconduct of plaintiff's counsel in the nature and extent of his voir dire examination; in overruling defendant's motions for a directed verdict at the conclusion of plaintiff's evidence and all the evidence, or, in the alternative, to enter final judgment for defendant; in withdrawing from the consideration of the jury, defendant's defense of assumption of risk, in refusing to give to the jury before argument defendant's special request No. 1 on the subject of assumption of risk, and in refusing to include in the general charge a charge on the subject of assumption of risk; in giving to the jury before argument plaintiff's special request No. 1; in the general charge to the jury; in overruling the motion of defendant for final judgment notwithstanding the verdict of the jury and the judgment entered thereon; and in overruling the motion of defendant for a new trial.

Appellant claims also that the verdict of the jury and the judgment entered thereon are not sustained by sufficient evidence and are contrary to the evidence and law.

The questions that this court should consider and discuss in this case are: first, Was Henline, while riding in his own automobile, a guest under the guest statute, or was he a passenger second, Is the doctrine of assumption of risk in this case?, third, Must the negligence, if any, of Wilson be imputed to Henline?

If Henline was a 'guest' in his own automobile, then further discussion of this case must cease, because it is conceded by counsel for Henline that neither the allegations of the petition nor the proof establish a claim under the guest statute of Ohio. That statute--Section 4515.02, Revised Code--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, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle.'

If the status of Henline at the time of the injury comes within any classification other than 'guest,' Wilson is liable for any negligence of which he may have been guilty, if such negligence was the proximate cause of the injuries suffered by Henline. The 'guest statute' must be strictly construed, since it is in derogation of the common law. Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217.

Judge Taft, in Lombardo v. De Shance, a Minor, 167 Ohio St. 431, at page 434, 149 N.E.2d 914, at page 917, 66 A.L.R.2d 1313, said, with respect to the judicial definitions of 'guest' and 'passenger' under this act, that:

'Heretofore, some of the opinions of this court interpreting the Ohio guest statute have used the 'designation of 'passenger' as one carried for hire or reward, as distinguished from 'guest' as one carried gratuitously.' The result has been some tendency toward confusion because of use of those words instead of referring to the statutory words, 'guest * * * transported without payment therefor' (see Vest, a Minor, v. Kramer, 158 Ohio St. 78, 84, 87, 93, 107 N.E.2d 105, 112), and also because of the necessity of squeezing into the definition of 'passenger' paying guests as well as those for whose transportation nothing has been paid and who are not really guests at all.'

The apparent confusion found in the cases which seek to define the words 'guest' and 'passenger,' as used in the 'guest statute,' comes about largely in an attempt to be so specific in framing a definition that a new and unusual situation, such as we find in the instant case or as arose in the Lombardo v. De Shance case, supra, requires a reappraisal of the specific definition, and a return to an application of the rule that a case must be read in the light of the facts of such case, and not with the view that there is established, by a given definition, a rule applicable under all circumstances.

In the instant case there is found a new and unusual circumstance not found in any reported Ohio case, and not many similar situations are found in the reported opinions in states having 'guest statutes' similar to our statute.

We shall look to cases with similar factual situations from other jurisdictions for the reasoning they adopt in solving this problem. All the Ohio cases that we have read indicate that a 'guest' is a person riding in an automobile as a recipient of the hospitality of the owner or driver. There is no evidence that Wilson was the agent of Henline, the owner, and if anyone in the instant case ws the recipient of hospitality, it was Wilson, the driver. He was some distance from his home, his automobile and his wife; the natural situation would be that he was to become the guest of Henline for the return to the Henline home.

In Phelps, Trustee, v. Benson, 252 Minn. 457, 90 N.W.2d 533, 536, where the Supreme Court of Minnesota interpreted the 'guest statute' of South Dakota, emphasis (in a factual situation similar to the one we have before us) was placed upon a statutory requirement that statutes in derogation of the common law must be 'liberally construed with a view to effect its objects and to promote justice.' The Supreme Court of Minnesota in that case analyzed all the then cases of a similar nature, and determined that the South Dakota statute, when properly interpreted, required a determination in that case that the owner of an automobile, injured when the vehicle over-turned, must be classed as a 'guest' when riding in his own motor car that was then being driven by a third person. The Minnesota court, in its opinion, indicated that it would similarly determine this question of 'guest' status if the Minnesota statute were involved.

If we were to adopt a liberal construction of our Ohio guest statute, it is very probable that we should reach the same conclusion as the court in the Phelps case, supra, based upon an...