Miller v. Fairley

• Decision Date: 07 April 1943
• Docket Number: 29392.
• Citation: 141 Ohio St. 327,48 N.E.2d 217
• Parties: MILLER v. FAIRLEY et al.
• Court: Ohio Supreme Court

48 N.E.2d 217

141 Ohio St. 327

MILLER v. FAIRLEY et al.

No. 29392.

Supreme Court of Ohio

April 7, 1943

Syllabus by the Court.

1. It is the duty of a court, when called upon to determine the common law to be applied to any matter governed thereby, to take into consideration the demands of common experience which have resulted in established custom adopted as a rule of conduct in the life of the people as related to the subject matter under consideration; but when the people through the legislative branch of government, commit a rule of law, applicable to a specific situation, to the formalities of a written statute, the court is obliged to give force to such statute according to its express terms and plain intent.

2. Statutes are to be read in the light of attendant circumstances and conditions, and are to be construed as they were intended to be understood, when they were passed.

3. The language of a statute, designed to give a substantial remedy for an admitted evil, should be given a fair construction in order to advance the remedy and correct the evil sought to be abated; but if the General Assembly has not made the remedy coextensive with the evil by the terms of the act, a court cannot do so by construction.

4. Section 6308-6, General Code, commonly known as the Guest Statute, must be construed to effectuate its purpose, but being in derogation of the common law and the rights of those who may be injured by the negligent operation of an automobile while being transported therein, its general provisions must be strictly construed, while the exception under consideration in this case must be liberally construed in favor of those who come within the purview of such exception.

5. Under the clear provisions of such statute, the operator of a motor vehicle is not liable for the negligent operation thereof resulting in injury to a person invited to ride with him unless such operator accepts payment for such transportation or unless he is guilty of wilful or wanton misconduct resulting in such injury; but if any payment which may be considered as payment for transportation is accepted by the operator of such motor vehicle, the statute does not apply and the operator is not protected.

6. Even though a party being transported pays only a portion of the cost of such transportation, such as for a share of the gasoline and oil consumed, but pays it in consideration for his transportation in connection with and for the prosecution of his business, it constitutes payment for transportation as contemplated by the statute.

7. Where the owner and operator of an automobile is employed at an establishment which has an organized transportation plan in furtherance of the war administration carried on by the United States Government, under which plan he has qualified and has entered into a written contract with two other persons employed at the same establishment, by the terms of which he agrees to transport such fellow employees daily to and from such establishment and their respective homes, for which transportation each of such employees pays him the sum of 20c for each day they are so transported, which sum the parties have agreed represents approximately one-third of the cost of the gasoline and oil consumed in such daily trips the sum thus paid under such written contract constitutes a payment for transportation and does not create the relationship of host and guest within the meaning of the Ohio Guest Statute, Section 6308-6, General Code.

Appeal from Court of Appeals, Cuyahoga County.

This action was brought in the Common Pleas Court of Cuyahoga county under the Declaratory Judgment Act of this state, Gen.Code § 12102-1 et seq., to determine the liability of the plaintiff to the defendants, in case of injury to the latter, arising out of the negligence of the plaintiff in the operation of his automobile while transporting the defendants therein between their homes and their places of employment.

The petition alleges that the plaintiff and defendants entered into a written contract in terms as follows:

'The agreement entered into this 12th day of September, 1942, between Joseph C. Miller, 14404 Darwin avenue, Cleveland, Ohio, first party, and Thomas Fairley, 9214 Rosalind, Cleveland, Ohio, and Walter Kulavick, 573 East 101st street, Cleveland, Ohio, second parties, witnesseth:

'Whereas, first and second parties are regularly employed as war workers at the Standard Oil Company, No. 1 Plant, Cleveland, Ohio, and each of them resides more than two miles from such plant;

'Whereas, first party is willing to carry second parties to and from work regularly in his automobile in order to qualify fortires as permitted under Amendment 16 of the Tire Rationing Regulations; and,

'Whereas, second parties are desirous of being so transported,

'Now, therefore, it is agreed as follows: '1. For the period of one year first party agrees to transport second parties 'round trip' four days or more each week between their present homes and the Standard Oil Company, No. 1 Plant, Cleveland, Ohio.

'2. Each of the second parties agrees to pay first party the sum of twenty cents (20c), for each day that they are transported by first party, which sum the parties have agreed represents approximately one-third of the cost of the gasoline and oil consumed in such daily trips.

'3. This contract shall be terminable by first or second parties or any of them upon one week's written notice to the other party or parties. * * *'

The petition further alleges that the subject matter of such contract and the provisions thereof are designed to be in furtherance of the general purpose of the war administration being carried on by the United States Government, and that it is to the private advantage of the parties to this action to settle and foreclose, and to afford relief against all uncertainty and insecurity with respect to the rights, status and other legal relations of the parties under such contract.

The prayer of the petition is that a finding be made and a judgment entered determining the legal effect and construction of the contract, and fixing and declaring the status, rights, duties and obligations of the plaintiff with respect to the defendants thereunder.

An answer was filed by the defendants admitting the facts alleged in the petition and joining in the prayer of the plaintiff.

The case was tried upon an agreed statement of facts, the pertinent provisions of which are as follows:

'2. Said plaintiff and defendants are regular employees of the Standard Oil Company of Ohio at its No. 1 Works in Cleveland, Ohio, engaged in war work for the United States of America.

'3. Said plaintiff and defendants have qualified as a riding group under the general supervision of the plant transportation committee of said Standard Oil Company and under the provisions of Section 594(a) (7) of the Revised Tire Rationing Regulations, as amended.

'4. On the 12th day of September, 1942, said plaintiff and defendants entered into a written agreement, which said agreement is set forth verbatim in the petition, wherein the plaintiff agreed to transport the defendants, 'round trip,' at least four times a week between their present homes and the Standard Oil Company No. 1 Works at Cleveland, Ohio; and under said agreement, each of said defendants agreed to pay the plaintiff 20c per day in consideration of said transportation by the plaintiff, said 20c per day being mutually understood to represent one-third of the cost of gasoline and oil consumed on each round trip.

'5. Said agreement of September 12, 1942, heretofore referred to, is now in full force and effect, and said defendants are now being transported by said plaintiff under the terms of said agreement.

'6. Plaintiff and defendants are in disagreement as to their legal rights, obligations and duties under said contract with respect to each other and to the general public. Plaintiff claims that the defendants are his guests within the provisions of G.C. 6308-6, known as the Guest Statute. The defendants deny this, claiming that the plaintiff is a private carrier for hire.

'7. Said group-riding and consequent contractual relationships between the plaintiff and defendants arise by reason of the orders promulgated by the Office of Price Administration under authority granted it to conserve the rubber stock pile of the United States and to enable the war effort to be more adequately pursued in the fact of a complete break-down of the transportation facilities of this country by reason of a rubber shortage.

'8. Said Office of Price Administration, on June 19, 1942, promulgated Amendment 16 to the Revised Tire Rationing Regulations, wherein it provided that executives, engineers, technicians and workers whose occupations or duties are performed at establishments employing one hundred or more employees and are of a nature which can reasonably be performed at a fixed place and at regular hours may obtain recapping facilities, or * * * grade II tires for transportation between their residence and their places of employment, * * * provided the following conditions are met * * *.'

Summarizing the board shall issue a certificate under paragraph (a)(7), Section 1315.504 only if: (1) The applicant is employed at an establishment which has an organized transportation plan, and presents with his application a written statement that the following requirements have been met: (a) that the applicant is not a temporary and transient worker at such establishment; (b) that other practicable means of transportation are not available, or that their use requires the applicant to consume more than one hour in going either to or from his work; (c) that the applicant resides at least two miles from the place of...