Hyer v. Velinoff

• Decision Date: 31 August 1971
• Parties: , 57 O.O.2d 332 HYER et al., Appellants, v. VELINOFF et al., Appellees.
• Court: Ohio Court of Appeals

Page 211

28 Ohio App.2d 211

277 N.E.2d 74, 57 O.O.2d 332

HYER et al., Appellants, v. VELINOFF et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Aug. 31, 1971.

Syllabus by the Court

1. Where aircraft transportation is gratuitously provided to another, motivated solely by a desire to perform a benefit upon the person being provided the transportation, such person is a 'guest,' within the meaning of R.C. § 4561.151, even though the parties may be business acquaintances.

2. Where aircraft transportation is gratuitously provided to a business acquaintance, motivated by an expectation of obtaining a business benefit either from the person being provided the transportation, his employer, or some third person, the person provided such transportation is not a 'guest' within the meaning of R.C. § 4561.151.

3. In an action to recover damages for injuries sustained in an aircraft crashlanding, where the evidence is such that reasonable minds could reach different conclusions as to whether plaintiff's status was that of 'guest' or 'passenger,' a jury question is presented, and it is error for the court to direct a verdict for the defendant.

Dunbar, Kienzle & Murphey and Dale A. Crawford, Columbus, for appellants.

Caren, Lane, Huggard, Alton & Horst and David L. Day, Columbus, for appellees.

WHITESIDE, Judge.

This is an appeal upon questions of law from a judgment of the Franklin County Municipal Court.

This action involves application of the airplane guest statute. At trial, the court directed a verdict in favor of defendants, appellees herein, upon the ground that plaintiff John F. Hyer, appellant herein, was a guest as a matter of law, but submitted the case to the jury upon the issue of willful and wanton misconduct. The jury returned a verdict for defendants upon that issue.

The plaintiffs have assigned two assignments of error, as follows:

'1. The trial court erred by directing, at the close of the plaintiffs' case, that John F. Hyer was a 'guest' in the airplane owned and operated by defendants.

'2. The trial court erred in not allowing testimony as to the relationship between the Multicon entities and the financial dependence by Mar-Vel upon such entities.'

Plaintiff Hyer, an architect, was the regional manager of planning and design for plaintiff-appellant Multicon, an Ohio limited partnership, having its principal place of business in Columbus, Ohio. His duties included those of architectural survey of sites, determining architectural feasibility to develop the type of garden apartment communities built by the partnership, site planning for those communities, architectural design of the various buildings, and supervision of construction on the sites. The actual construction was performed by a related corporation, Multicon Construction Corporation, as general contractor. Plaintiff Hyer represented the owner in dealing with the general contractor which, in turn, contracted and dealt with various subcontractors.

Defendant Mar-Vel Sheet Metal Corporation was a subscontractor on some of these projects, including one called Georgetown of Lindhurst. Defendant John R. Velinoff was vice-president of that corporation.

On March 11, 1969, plaintiff Hyer planned a trip to Cleveland, Ohio, for two purposes: First, to attend a meeting in connection with a project called Georgetown of the Highlands Phase II, and second, to review construction progress at Georgetown of Lindhurst, a project of some 200 plus units, which was about 40 per cent completed. He was to be accompanied on this trip by Jim Sherwood, construction manager for the Cleveland area for Multicon Construction Corporation.

Plaintiff Hyer planned to fly to Cleveland by commercial airline. While in the process of checking in for this flight, he was approached by Sherwood and accompanied him to an automobile parked outside the main airport terminal, in which automobile defendant John Velinoff and his father, Clarence Velinoff, president of defendant Mar-Vel, were seated. Plaintiff Hyer was informed that the Mar-Vel people were flying to Cleveland in their own aircraft, and consented to ride with them.

Defendant Velinoff had earlier picked up Sherwood at his residence and they had driven to the airport together. Plaintiff Hyer, Sherwood, and defendant Velinoff then proceeded to fly to the Cleveland area in a small, single-engine airplane owned by the defendant Mar-Vel. The purpose of the trip on the part of defendant Velinoff was to turn in a construction draw for the Georgetown of Lindhurst project on behalf of defendant Mar-Vel. Defendant Velinoff piloted the aircraft.

At or about Richfield, Ohio, the aircraft encountered bad weather conditions, and crash-landed in a field, as a result of which plaintiff Hyer sustained personal injuries and property damage, and the plaintiff Multicon lost some personal property.

The first assignment of error raises the issue of whether plaintiff Hyer's status can be determined as a matter of law to be that of a guest within the meaning of R.C. § 4561.151, or whether that issue is one of fact. R.C. § 4561.151 reads, as follows:

'The owner, operator, or person responsible for the operation of an aircraft shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said aircraft, while such guest is being transported without payment therefor in or upon said aircraft, unless such injuries or death are caused by the willful or wanton misconduct of such owner, operator, or person responsible for the operation of said aircraft.'

Such statute grants the owner or operator of an aircraft immunity from liability for injuries to a guest transported without payment for the transportation, unless such injuries are caused by willful or wanton misconduct on the part of such owner or operator.

At the outset, it must be noted that the guest statute does not grant immunity from liability to everyone who may be riding in an aircraft, but only as to such riders who are 'guests.' Even with respect to 'guests,' the immunity is afforded only if there is no payment for the transportation.

This distinction is important because there has, on occasion, been an assumption that a rider is per se a 'guest' unless he has paid for the transportation, in which case he is not a 'guest.' However, a careful examination of the statute clearly indicates that there may be riders who are not guests and there may be guests as to whom no immunity from liability is provided because the guest has paid for the transportation.

Had the General Assembly intended that the guest statute apply to all riders, i. e., all passengers, being transported without payment therefor, we must assume that the General Assembly would have utilized the term 'rider' or 'passenger,' rather than the term 'guest' in the guest statute. We therefore conclude that there may be riders, or passengers, who are not guests because of the circumstances under which the transportation is provided, even though no 'payment' is made for the transportation.

Since R.C. § 4561.151, the aircraft guest statute, is essentially identical in language to R.C. § 4515.02, the motor vehicle guest statute cases construing the latter are in point.

In Burrow v. Porterfield (1960), 171 Ohio St. 28, the Supreme Court, at pages 35-37, 168 N.E.2d 137, at pages 143, 144, attempted to enumerate the circumstances under which a rider is and is not a guest, as follows:

'Our decisions indicate that a rider is a guest within the purview of Section 4515.02, Revised Code, where one of the following relationships exists '(1) Where the transportation is furnished solely for the business or material interest or pleasure of the rider, or where the transportation is furnished solely as an act of social courtesy by the driver. Dorn v. Village of North Olmsted, supra, 133 Ohio St. 375, 14 N.E.2d 11, paragraph four of the syllabus; Hasbrook v. Wingate, supra 152 Ohio St. 50, 87 N.E.2d 87, paragraph three of the syllabus; O'Rourke, Admx., v. Gunsley, 154 Ohio St. 375, 96 N.E.2d 1, paragraph two of the syllabus.

'(2) Where the transportation is furnished solely for the social and pleasure purposes of both the rider and driver. Duncan v. Hutchinson, supra, 139 Ohio St. 185, 39 N.E.2d 140.

'(3) Where the rider pays expense money or gives other valuable consideration to the driver as an act of social courtesy and not as payment for transportation. Duncan v. Hutchinson, supra, 139 Ohio St. 185, at page 191, 39 N.E.2d 140, at page 143.

'(4) Where expense money is paid or other valuable consideration is given by the rider as a result of an implied agreement to pay for transportation, and such money or other consideration is not substantially commensurate with the cost of such transportation to the driver. Hasbrook v. Wingate, supra, 152 Ohio St. 50, 87 N.E.2d 87, paragraph two of the syllabus.

'On the other hand, our decisions indicate that a rider is a passenger and not a guest within the purview of Section 4515.02, Revised Code, where one of the following relationships between driver and rider exists:

'(1) Where the transportation is furnished for the sole business or material interests of the driver. Dorn v. Village of North Olmsted, supra, 133 Ohio St. 375, 14 N.E.2d 11, paragraph one of the syllabus; Birmelin v. Gist, supra, 162 Ohio St. 98, 120 N.E.2d 711, paragraph one of the syllabus; O'Rourke v. Gunsley, supra, 154 Ohio St. 375, 96 N.E.2d 1, paragraph two of the syllabus.

'(2) Where the transportation is furnished for the mutual business or material interests of both the rider and driver. Hasbrook v. Wingate, supra, 152 Ohio St. 50, 87 N.E.2d 87, paragraph three of the syllabus; Duncan v. Hutchinson, supra, 139 Ohio St. 185, at page 189, 39 N.E.2d 140, at page 142.

'(3) Where expense money is paid or other valuable consideration is given by the rider as a result of an implied agreement to pay for transportation, and such money or...