Hogan v. Finch

• Decision Date: 21 December 1966
• Docket Number: No. 39984,39984
• Citation: 8 Ohio St.2d 31,222 N.E.2d 633
• Parties: , 37 O.O.2d 379 HOGAN, a Minor Appellee, v. FINCH, a Minor, Appellant.
• Court: Ohio Supreme Court

Page 31

8 Ohio St.2d 31

222 N.E.2d 633, 37 O.O.2d 379

HOGAN, a Minor Appellee, v. FINCH, a Minor, Appellant.

No. 39984.

Supreme Court of Ohio.

Dec. 21, 1966.

Syllabus by the Court

1. Where the evidence in a case permits a factual finding that plaintiff rendered a service for defendant at his (defendant's) request, and as an accommodation to him, upon his promise that he would transport plaintiff to her home in his automobile as a consideration therefor, and that plaintiff performed such service and was injured by defendant's negligent operation of the automobile on the way to plaintiff's home, a determination by a jury, under appropriate instructions of the court, that plaintiff occupied the status of passenger, entitled to recover damages for her injuries from defendant on the basis of his negligence, will be allowed to stand.

2. A general verdict for plaintiff in such a case will not be disapproved and set aside, unless the answers to special interrogatories submitted to the jury, considered together, are inconsistent and irreconcilable with the verdict.

This action to recover damages for personal injuries and grounded on negligence originated in the Court of Common Pleas of Lawrence County with Mary Amy Hogan, a minor, as plaintiff and Steven Dwight Finch, a minor, as defendant.

In her amended petition plaintiff alleges that 'on May 29, 1960, she was at Riverside Swimming Club at Chesapeake, Lawrence County, Ohio, with her (older) sister; that when her sister was ready to leave, defendant requested said plaintiff to watch and play with his ten year old brother and relieve defendant of this duty until said defendant was ready to leave and that at such time he would bring the plaintiff home and that by reason of such request, said plaintiff did accept said offer and did remain to watch and play with defendant's brother and to be brought home by defendant in his car.'

Further allegations are 'that defendant did begin to drive her (plaintiff) home and that as he approached the traffic light at the intersection in Chesapeake, Ohio, he failed to keep his car under control and struck a car that was stopped at said traffic light which was red * * * at the time of said collision.'

Continuing, the amended petition charges defendant with such excessive speed that he could not stop within the assured clear distance ahead; that as a result of the collision plaintiff was thrown into and against the cowl and windshield of defendant's automobile with such force that she received bruise and cuts about her mouth and face; that her jawbone was fractured; that five of her teeth were knocked out; and that five prominent teeth were so damaged as to require removal.

Necessary expenses incurred and to be incurred by reason of the alleged injuries are listed at $8,526, and additional general damages are claimed in the sum of $50,000.

Defendant's answer admits the allegations of the amended petition as to plaintiff's minority; that plaintiff was an occupant in defendant's car at the time and place alleged; that defendant was driving the automobile; and that a collision occurred. Then follows a general denial. Additional allegations are in substance that plaintiff was in fact a guest in defendant's automobile, and that the amended petition alleges mere negligence, does not state a cause of action and should be dismissed at plaintiff's costs.

The reply specifically denies that plaintiff 'was in fact a guest in defendant's automobile at said time and place.'

Upon the jury trial of the action, evidence was presented substantiating the allegations of the petition with respect to defendant's negligence, the substantial personal injuries sustained by plaintiff and the status of plaintiff in the automobile at the time of her injuries.

On direct examination, plaintiff testified that she was about to leave the swimming club with her older sister and some other companions when defendant 'yelled to his younger brother (Karl) who was beside me at the time. * * * he asked for me that if I would stay, that he would give me a ride home if I would stay with his brother.' This version of what occurred was denied by defendant.

At the request of counsel for defendant and before oral argument, the court gave the following three special charges to the jury:

'Special instruction No. 1: Members of the jury, I charge you that in the case at bar the defendant is charged only with negligence. You will, therefore, concern yourselves only with the question of whether or not the plaintiff was a guest or a passenger in the automobile operated by the defendant in determining whether or not the defendant is liable. Special instruction No. 2: Members of the jury, I charge you that if you find from the evidence that the plaintiff was a guest of the defendant while being transported without consideration therefore, your verdict should be for the defendant. Special instruction No. 3: Members of the jury, I charge you that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that she paid the defendant for her transportation or that she accompanied the defendant at the instance of the defendant for the purpose of having the plaintiff render a benefit or service to the defendant, which was primarily for the attainment of some objective of the defendant. Otherwise, you must find for the defendant.'

In its general charge, the court instructed the jury:

'* * * In this case the plaintiff does not claim that defendant was guilty of any wilful or wanton misconduct, and, therefore, if the plaintiff was a guest at the time of the accident, then your verdict must be for the defendant. It, therefore, becomes important that you determine the status of the plaintiff when she commenced her transportation in the car of the defendant. The statute says that if the plaintiff is being transported without payment, she is considered a guest; what constitutes payment? It may be an actual payment of money for the ride, but it does not necessarily require a monetary payment. In other words, one is a guest, under this statute where there is no business relationship between the parties, either of present or prospective contract, which provided the occasion for the transportation, and no mutual benefit or otherwise, which could be regarded as a consideration, the only relationship being a social one of hospitality on the part of the driver. It is sufficient to remove a person from the classification of a guest if a person, by some service or assistance to the operator in making the trip, compensates the operator in a material or business sense, as distinguished from mere social benefit or nominal or incidental contribution to expenses. In determining the status of the plaintiff, you will carefully consider all of the evidence, including what conversations the plaintiff and defendant had concerning the ride, what they did, whether there was a consideration for the ride, the age of both the plaintiff and defendant, their intentions before and at the time of the ride and from it all determine whether or not plaintiff was a guest and, if she was, then she cannot recover and your verdict will be for the defendant. If you find from a consideration of the evidence that the plaintiff was not a guest, then you will consider the amount of damages to be awarded. It is admitted that the defendant, at the time of this accident, was negligent, that he ran into the car ahead of him. If, in your determinations, you determine that Amy Hogan was not a guest, you will then direct your attention to the amount of damages from the evidence. * * *'

At defendant's request, two interrogatories were submitted to the jury. These, with the answers thereto, each signed by nine of the jurors, are as follows:

'Interrogatory No. 1: Do you find that any consideration passed to the defendant for the trip home? Answer: Yes.

'Interrogatory No. 2: If your answer to interrogatory No. 1 is yes, state what said consideration consisted of. Answer: To influence the older sister of the plaintiff.'

A general...