Vest v. Kramer, s. 32789 and 32790
| Decision Date | 18 June 1952 |
| Docket Number | Nos. 32789 and 32790,s. 32789 and 32790 |
| Citation | 158 Ohio St. 78,107 N.E.2d 105 |
| Parties | , 48 O.O. 38 VEST v. KRAMER (two cases). |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. A two-wheeled utility trailer which is designed for and employed in general highway transportation and which is attached to and operated as a unit with an automobile which provides the operative power for the unit is a motor vehicle within the meaning of subdivision 2 of Section 6290, General Code.
2. A motion by defendant for judgment on the pleadings and statement of counsel for the plaintiff is an admission by the defendant, for the purposes of the motion, of the truth of the well pleaded facts, the statement of counsel and all proper inferences which may be drawn therefrom and leaves no disputed fact to be determined by the jury but only a question of law for the court.
3. In an action on behalf of a member of a boy scout troop against the assistant scout master of the troop for personal injuries resulting from the claimed negligent operation of a two-wheeled utility trailer attached to defendant's automobile, where it appears from the allegations of the petition and opening statement of counsel that the boy scout, 12 years of age, and the defendant were engaged in collecting waste paper from premises along the public streets and highways and transporting it to a central point as an enterprise for the benefit of the troop through the use of the trailer and automobile operated by the defendant and under his immediate supervision and direction; that the boy scout was assisting in the project by collecting, placing and securing the paper on the trailer during which process he mounted and dismounted from the trailer and received transportation thereon; and that the boy scout in attempting to regain his position on the trailer while it was in motion was injured through the defendant's negligent operation of the automobile and trailer, the defendant's motion for judgment on the petition and opening statement of counsel should not be granted on the ground that the boy scout was at the time of his injury a guest of the defendant, within the meaning of Section 6308-6, General Code.
Case No. 32789 is an action by David Vest, a minor, by next friend, for personal injuries suffered on March 16, 1948, in connection with the alleged negligent operation by the defendant of a two-wheeled utility trailer attached to his automobile.
Case No. 32790 is a companion action against the defendant by the father of David Vest for loss of services of the latter growing out of the same accident. By agreement of counsel on pre-trial, these actions were consolidated for purposes of trial and judicial consideration, and will here be considered as one case with terms used in the singular number.
The petition alleges, in substance, the facts as follows:
David was at the times hereinafter referred to a minor about 12 years of age. The defendant was the owner and operator of an automobile with a utility trailer attached thereto and was the acting assistant scout master of Troop 214 of the Boy Scouts of America, located in the city of Berea, of which troop David was a member. On March 16, 1948, the troop, through its officers and committees, as an activity to which the raising of money was incidental, was engaged in a scrap paper collection under the immediate supervision and direction of defendant. The transportation therefor was supplied by defendant and was under his personal direction and control. About a dozen of the members of the troop supplied the labor for such scrap paper collection which embraced the removal of scrap paper collected from residences and premises along various streets and the placing of same in a utility trailer which defendant had attached to his automobile and which he operated for the purpose of transporting such paper to a point nearby for unloading. On the day in question David, with other boys, all members of troop 214, was engaged under the direct supervision of defendant in such paper collection. By the time they had progressed to a certain point, such utility trailer had become filled and overheaped with papers, and with the knowledge and approval and under the direction of defendant David and several other boys climbed on top of the overheaped papers for the purposes of transportation and weighting the papers down. Defendant started his automobile with the utility trailer attached and after moving a short distance the overheaped papers became insecure and some fell off. Defendant was advised thereof and slowed down the speed of his automobile. Thereafter, while David, after replacing the dislodged papers, was climbing aboard the moving trailer, defendant suddenly and without warning caused his automobile and trailer to move forward with increased speed and David lost his grip and balance, whereupon his right foot became caught in one of the wheels of the trailer as a result of which he was thrown under the wheels and suffered severe injuries.
The petition then alleges that the injuries sustained were occasioned wholly, solely and proximately by the carelessness, recklessness and negligence of the defendant in the operation of the trailer, and sets out specifications of alleged negligence and the nature of the injuries.
The answer of the defendant admits that David was a minor; that on the day in question the defendant, as assistant scout master for such troop, was engaged with David and other members of the troop in the collection of paper as a part of the activities of the boy scouts for the purpose of raising funds; and that while he, David and other members of the troop were engaged in such collection of paper David sustained an injury as the result of an accident. The answer then denies that such accident was caused by any negligence upon the part of the defendant.
The only material facts stated by counsel in his opening statement to the jury in addition to those alleged in the petition were that the trailer in question had a bed on it about eight feet long and four feet wide and had sides ten to twelve inches high.
At the conclusion of the opening statement of counsel for plaintiff, the defendant moved for a judgment in his favor on the pleadings and opening statement of counsel, which motion was granted. Thereupon, plaintiff appealed to the Court of Appeals, which court reversed the judgment of the trial court and remanded the cause to that court for further proceedings according to law.
The cause is now in this court on the allowance of defendant's motion to certify the record.
Beach & Warner, Cleveland, for appellees.
Hauxhurst, Inglis, Sharp & Cull and Michael R. Gallagher, Cleveland, for appellant.
The record in this case, outside the original papers and docket entries, is limited to the material facts stated in the pleadings and the opening statement of counsel for the plaintiff. Since the sufficiency of such facts to warrant a recovery is challenged by the motion for judgment, the court for the purposes of judicial inquiry and determination must accept such facts as admittedly true. Cornell v. Morrison, 87 Ohio St. 215, 100 N.E. 817.
The defendant takes the position that David at the time of his injury was defendant's guest being transported in his motor vehicle, and, since no wilful or wanton misconduct is charged against him, he is immune from liability under Section 6308-6, General Code, known as the 'guest statute,' which is 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 while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'
On the other hand, the plaintiff maintains that the two-wheeled trailer which was attached to defendant's automobile was not a motor vehicle within the meaning of the statute; that David was not at the time he was injured riding as a guest of the defendant; and that the ordinary rules of negligence apply to the relationship thus created between him and David.
Subdivision 7 of Section 6290, General Code, defines the term, 'trailer,' as 'any vehicle without motive power designed or used for carrying property or persons wholly on its own structure and for being drawn by a motor vehicle'.
Subdivision 2 of Section 6290, General Code, defines the term, 'motor vehicle,' as 'any vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except road rollers, traction engines' and certain other construction work equipment and farm machinery not necessary to be here specifically enumerated. (Italics supplied.)
The question arises whether a trailer attached to and operated by the power of and as a unit with an automobile is a motor vehicle. Although there are cases logically holding that a trailer unattached to a motor vehicle is not itself a motor vehicle, there is scant judicial authority as to its status when attached to and operated in connection with a motor vehicle furnishing the power for its operation. The definition of 'motor vehicle' as being 'any vehicle * * * drawn by power other than muscular power or power collected from overhead electric trolley wires' seems to answer specifically the question in the affirmative. Considered from a practical operational standpoint, this is a rational classification. The fact that the operator of an automobile transports another in a trailer attached to his automobile either as his guest or otherwise rather than in the automobile itself would not alter or change the legal relationship between the operator and the person transported.
If the operator of an automobile-trailer outfit should transport gratuitously...
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