Lombardo v. De Shance

Decision Date16 April 1958
Docket NumberNo. 35279,35279
Citation149 N.E.2d 914,167 Ohio St. 431,66 A.L.R.2d 1313
Parties, 66 A.L.R.2d 1313, 5 O.O.2d 114 LOMBARDO, Appellee, v. DE SHANCE, a Minor, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. Although there may be an acceptance of hospitality by a guest, the ordinary meaning of the word 'guest' does not require anything more than the giving of such hospitality in order to make the person, receiving and to be benefited by it, a guest.

2. One, who has voluntarily become intoxicated to such an extent that he cannot know or understand what he is doing, may, while in that condition, become and be a guest within the meaning of the Ohio guest statute (Section 4515.02, Revised Code).

In her petition, plaintiff alleges that, at and prior to 1 a. m. on February 10, 1956, she 'consumed a large amount of intoxicating liquor, which caused her to become so intoxicated that she lost control of her faculties and the ability to know or understand what she was doing for several hours thereafter'; that 'while' plaintiff 'was in' that 'condition * * * defendant took her into his automobile * * * without her knowledge and consent, and then proceeded to drive said automobile, with the plaintiff as an occupant * * * for a long distance'; that 'travel * * * was perilous, by reason of slippery conditions and heavy and intense fog, through which visibility was impenetrable, as defendant well knew, or in the exercise of ordinary care should have known'; that after 'about 15 miles' of such driving 'state route No. 6 proceeds over a number of steep hills, where there are sharp and dangerous curves'; and that 'defendant * * * there drove his * * * automobile with great force and violence off of said road and against a large tree, completely demolishing * * * said automobile' and thereby caused injury to plaintiff.

There are no other allegations of the petition which can be referred to as tending to indicate any negligence or misconduct of defendant.

It appears from the evidence that, sometime after 1:20 a m., the defendant, the plaintiff and a young man named Leppelmeier left Nero's Bar in Mayfield Heights and that they got into defendant's car and, after driving around for a short time, started, between about 1:30 and 1:45 a. m., for Chardon. Although there is a conflict in the evidence as to the distance to Chardon, this court can judicially notice that it is about 20 miles from Mayfield Heights by the routes admittedly taken by defendant's car. According to defendant's testimony, he turned around shortly before reaching Chardon and was proceeding west on route 6 when his car left the road and all three occupants of the car were rendered unconscious; and when defendant regained consciousness he managed to get to a nearby house where a telephone call for an ambulance was made to the Geauga County sheriff. Admittedly the sheriff received that call about 3:17 a. m.

According to plaintiff's testimony, she went to Wilson Mills Tavern about two miles from Nero's Bar, between 4:30 and 5:00 p. m., and had several drinks of whiskey, after which she remembers nothing, not even going to Nero's until she woke up in the hospital the next day. According to the testimony of Leppelmeier, who testified as a witness for plaintiff, he had been at another bar until it closed about 12 and had drunk several beers there and then he went to Nero's and had 'quite a few' whiskeys with ginger ale. He remembers leaving Nero's with the defendant and plaintiff and getting into the defendant's car and driving to his father's gasoline station about one and one-half miles away to get some gas but remembers nothing that happened after that. Although defendant had had some drinks, there is no evidence tending to prove that defendant was intoxicated and there is affirmative evidence tending to prove that he was not.

The cause was submitted to a jury which rendered a verdict of $4,000 for plaintiff. Thereafter, the Common Pleas Court overruled defendant's motion for judgment non obstante veredicto and rendered judgment for the plaintiff on that verdict.

On appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed by a divided court.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Paynter & Green, Cleveland, for appellant.

Henry C. Lavine and Alan Meltzer, Cleveland, for appellee.

TAFT, Judge.

In view of our decision in Manker v. Shaffer, 161 Ohio St. 285, 118 N.E.2d 641, the allegations of the petition were probably sufficient, under the rule of res ipsa loquitur, to raise a jury question as to whether defendant's negligence was a proximate cause of plaintiff's injuries. However, there are no allegations in the petition which can be construed as allegations of 'willful or wanton misconduct' within the meaning of those words an used in the Ohio guest statute, Section 4515.02, Revised Code, which reads:

'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.'

Although plaintiff argued that the evidence would justify an inference of willful or wanton misconduct of the defendant, no effort was made to amend the petition to allege such misconduct, and the evidence in the record cannot, in our opinion, justify a reasonable inference of such misconduct. *

Although Leppelmeier testified that he furnished defendant with gasoline without any charge therefor before they embarked on the automobile ride which ended in the injuries to plaintiff, no contention is made, probably because of our decisions in Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342, and Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140, that this represented any 'payment' for plaintiff's transportation within the meaning of the Ohio guest statute.

Therefore, the only question to be decided is whether one, who has voluntarily become intoxicated to such an extent that he cannot know or understand what he is doing, may, while in that condition, become and be a guest within the meaning of the Ohio guest statute.

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 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. See ...

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13 cases
  • Naphtali v. Lafazan
    • United States
    • New York Supreme Court — Appellate Division
    • 4 Mayo 1959
    ...Epps v. Parrish, 26 Ga.App. 399, 106 S.E. 297). The Ohio statute does not define the word 'guest' as used therein (Lombardo v. De Shance, 167 Ohio St. 431, 434, 149 N.E.2d 914). Nor, for that matter, does it define the phrase 'without payment therefor', that is, without payment for the tran......
  • Stiltner v. Bahner
    • United States
    • Ohio Supreme Court
    • 24 Mayo 1967
    ...into the vehicle, depends upon the definition of the word 'guest' as used in the Ohio Guest Statute. In Lombardo v. DeShance (1958), 167 Ohio St. 431, 149 N.E.2d 914, 66 A.L.R.2d 1313, we stated in paragraph one of the '* * * the word 'guest' does not require anything more than the giving o......
  • Mitzel v. Hauck
    • United States
    • South Dakota Supreme Court
    • 13 Octubre 1960
    ...'Any person who as a guest accepts a ride in any vehicle, * * *'. These cases are the subject of comment in Lombardo v. De Shance, 167 Ohio St. 431, 149 N.E.2d 914, 66 A.L.R.2d 1313, where a person who voluntarily became intoxicated to such an extent that he could not know or understand wha......
  • Henline v. Wilson
    • United States
    • Ohio Court of Appeals
    • 3 Febrero 1960
    ...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, 'Here......
  • Request a trial to view additional results

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