Voelkl v. Latin, No. 4516.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: GEIGER
• Citation: 58 Ohio App. 245,16 N.E.2d 519
• Docket Number: No. 4516.
• Decision Date: 19 April 1938
• Parties: VOELKL v. LATIN.

58 Ohio App. 245
16 N.E.2d 519

VOELKL
v.
LATIN.

No. 4516.

Court of Appeals of Ohio, Second District, Montgomery County.

April 19, 1938.

Action by Eleanor Voelkl against Harry G. Latin, administrator of Ruth Horst, deceased, to recover for injuries sustained while riding in an automobile driven by the deceased. From an adverse judgment, defendant appeals.-[Editorial Statement.]

Judgment reversed and rendered.

[16 N.E.2d 519]

Syllabus by the Court.

1. Where two sisters, with their respective husbands and a mutual friend, have arranged to take an automobile trip for purely social purposes and one sister becomes the driver of the car and the others are being transported and during the trip an accident

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occurs which results in the death of the sister who was driving the car and her husband, and serious injury of the other sister and her husband and of the other person being transported, those being transported were guests of the owner of the car or the one responsible for their transportation, and in a suit by the surviving sister for the recovery of damages, where no act of wilfullness or wantonness is plead or proved, the provisions of Section 6308-6, General Code, known as the Guest Statute, will prevent a recovery, even though at the start of the trip the husband of the injured plaintiff paid to the husband of the driver the sum of $2 on account of the expense of gasoline.

2. The case of Dorn, Adm'r, v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11, does not militate against the above holding. In that case the Supreme Court had under consideration only the question as to whether the injured person, who was being transported, was in fact a guest, and did not determine therein the basic question as to what would constitute payment for transportation of one who is a guest.

HORNBECK, J., dissenting.

James & Coolidge, of Dayton, for appellant.

Kelly, Knee & Wick, of Dayton, for appellee.

GEIGER, Judge.

This action arose out of a very distressing automobile accident occurring northeast of Greenville, on February 16, 1935.

Plaintiff, Eleanor Voelkl, and her husband, Frank M. Voelkl, were riding with Harry Horst and Ruth Horst, husband and wife, and a Mrs. Young. Mrs. Horst and Mrs. Voelkl were sisters; Mrs. Horst was driving when the automobile ran off the road into a wire fence and collided with a tree. Mrs. Horst and her husband were killed, and Mr. and Mrs. Voelkl and Mrs. Young were seriously injured.

Harry G. Latin, the administrator of Ruth Horst, is the father of Ruth Horst and of the plaintiff, Eleanor Voelkl.

The plaintiff, in her amended petition, alleges that she filed with the administrator a claim, and made demand that the administrator allow the same, which he refused; that on February 16, 1935, she was a paying passenger in a Cadillac coupe; that it was at the time being driven by Ruth Horst, since deceased, the wife of Harry Horst; that when the automobile reached a curve in the road northeast of Greenville, it failed to follow the road, but ran off and into a tree, and the plaintiff was injured; that at the time and place said vehicle was being operated in a dangerous, reckless and negligent manner by Ruth Horst, in that she failed to keep a proper lookout, was driving at an excessive rate of speed, to wit, seventy miles per hour, and failed to retain such control of the vehicle as to permit its being brought to a stop within the assured clear distance ahead; that as a direct and proximate result thereof the plaintiff was injured, for which she asks judgment in the sum of $20,131. Motions were made to this petition which were overruled by the court. An answer was filed by the administrator, admitting the presentation of the claim and its disallowance, and denying all other allegations. The cause came to trial. A motion was made for a directed verdict at the conclusion of plaintiff's testimony, and at the conclusion of all the testimony, both of which were overruled. A motion for new trial was interposed, overruled, and the cause appealed to this court on questions of law.

Numerous errors were assigned by appellant, among them that the court erred in overruling certain motions; admitting evidence over objection; overruling the motion for directed verdict; refusing to allow counsel for appellant to argue the Guest Statute to the jury; refusing to submit interrogatory No. 2 in its charge to the jury; and not sustaining the motion for judgment notwithstanding the verdict. There is no allegation in the petition that the injuries were caused by the wilful or wanton misconduct of the owner, operator, or person responsible for the operation of said vehicle, and no effort was made to bring the accident within the scope of wilful or wanton misconduct.

‘Wanton misconduct is such conduct as manifests a disposition to perversity, and

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it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury.’ Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843.

‘* * * Such guest must plead facts that reveal on their face the element of willfulness or wantonness * * *.’ Vecchio v. Vecchio, 131 Ohio St. 59, 1 N.E.2d 624.

The action is conceded to involve the provisions of Section 6308-6, General Code, which provides that the owner of the car shall not be liable for injuries of a guest ‘while being transported without payment therefor’ commonly known as the ‘Guest Statute.'

We have examined the evidence in this case very carefully, and while we are of the opinion that it does not show wilful and wanton misconduct, it does disclose that degree of negligence in the operation of the car as would require submission to the jury, if the driver is not protected by the provisions of Section 6308-6, General Code.

The crucial question is whether the plaintiff in this case was being transported by her sister ‘without payment therefor,’ and that makes it important that we examine the testimony relating to this question.

Two of the parties to the transaction being dead, and the plaintiff being prevented from testifying under the provisions of Section 11495, General Code, the testimony as to the transaction, which is claimed to have made the plaintiff a guest paying for her transportation, falls within narrow limits.

Frank M. Voelkl, the husband of the plaintiff, testified to the relationship of the parties; that Ruth was a sister of the plaintiff and the wife of Harry Horst, and that he was the husband of the plaintiff and the brother-in-law of Ruth Horst; that the families were very intimate, and often visited back and forth; that on the evening in question they were invited to a party at Versailles, Ohio; that they had arranged to go together; that he and his wife went to the Horst home at about eight o'clock on the evening in question, and that in addition to the four, Mrs. Ruth Young was to go along; that he drove his car to the Horst home, where there was a discussion about the mode of transportation, and he suggested that as his car was out and the Horst car was in the garage that they should take his car, as everything was in good working order, and that he might as well drive, to which Mr. Horst acquiesced. Mr. Horst said: ‘If you take your car I will pay for the gasoline,’ and took from his pocket money for that purpose. While this matter was being discussed by the two men, Mrs. Horst said, ‘I want to drive our car,’ and thereupon Voelkl said, ‘If you are going to do that I will put my car in the garage and take yours out, and I will pay for the gasoline.’ Thereupon he took out money and paid $2 to Mr. Horst. The witness stated: ‘Yes, and that settled the _____.'

Thereupon they left the Horst home and picked up Mrs. Young.

In cross-examination this matter is somewhat elaborated, however, without much change.

Mrs. Horst said, ‘Let's take our car I want to drive,’ and thereupon Horst said, ‘all right,’ and the two men exchanged money resulting in Voelkl paying $2. Both expressed satisfaction. Horst ‘got two dollars our of the transaction.’ Voelkl, upon being asked: ‘Now you gave him that money to help pay for the expenses, the gasoline for the car?,’ answered: ‘He was going to pay me so I felt I would pay him.’ The reason given for his payment was that Horst was going to pay him if he used his car, and he felt that it was the proper and right thing to do to share the gasoline if Horst used his car. Horst did not ask directly that the witness pay anything.

Objections being interposed further testimony in reference to the financial arrangement terminated. Under this evidence it is claimed by the plaintiff that she became a guest ‘transported for pay.'

We have been unable to discover whether the automobile driven by Mrs. Horst belonged to her husband or both together-it was spoken of as ‘our car’ and ‘his car.'

It is urged by the appellant that inasmuch as the evidence discloses that the financial transactions took place between the two men, Voelkl and Horst, that there was no payment made for Mrs. Voelkl, and no money received by Mrs. Horst, who is sought to be held responsible.

It is urged that the most that can be claimed is that the money made Mr. Voelkl

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a paid passenger and not his wife, and that, further, the money having been paid to Mr. Horst, the arrangement did not establish a contract under which Mrs. Horst was paid anything, it being asserted that payment of money to her husband by her brother-in-law fell short of such a contract as would constitute Mrs. Horst, the driver, one receiving payment for transporting Mrs. Voelkl. We do not decide this question, at present, but put it aside for further consideration.

The crucial question is whether the money paid was being paid for the transportation of Mrs. Voelkl, or whether it was...