Hyer v. Velinoff , 28 Ohio App. 2d 211 ( 1971 )

I must dissent from the decision of my colleagues in that I believe the plaintiff Hyer to be a "guest" within the intent and meaning of Ohio law and the interpretation thereof.

As to who is a guest under the motor vehicle statute, 6A Ohio Jurisprudence 2d 226, Automobiles, Section 254, sets forth the following:

"A ``guest' within the meaning of the guest statute is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a motor vehicle, and who accepts such hospitality and takes a ride either for his own pleasure or on his own business without making any return to or conferring any benefit upon the driver of the motor vehicle other than the mere pleasure of his company. In other words, one is a guest where there is no business relationship between the parties, either of present or prospective contract, which provided the occasion for the transportation, and no benefit, mutual or otherwise, which could be regarded as a consideration, the only relationship being a social one of hospitality. * * *" (CitingDorn v. North Olmsted (1938), 133 Ohio St. 375, and Snyder v.Milligan (1936), 52 Ohio App. 185.)

One of the early, and leading, cases concerned with construing the guest statute, then General Code Section 6308-6, was Duncan v. Hutchinson (1942), 139 Ohio St. 185. In deciding what constituted "payment" in order to take the rider out of the application of the guest statute, the court stated, at page 188:

"* * * Keeping in mind the purpose of the statute, it would seem that any expense money paid by a person for a ride in an automobile which is not substantially commensurate with the cost of such transportation will not take him out of the guest status fixed by the statute, unless payment for transportation as such was actually agreed upon. * * *"

The court went on to state the justification for such rule as follows:

"* * * The justice of this rule is based on the fact that it would be unfair to hold the motorist to liability for injuries to his guest due to the hazards of transportation, unless the motorist is, in turn, compensated for such transportation in a manner substantially commensurate with the cost and the hazards of the undertaking."

But then the court further enlightened us as to what, under certain circumstances, could be considered as payment in the following language:

"On the other hand, where the relationship between the automobile host and a party riding with him has a business aspect and the transportation is supplied for their mutual benefit, any payment or service rendered to the automobile host by such person for the ride will constitute ``payment therefor' and will remove the automobile host from the protection of the statute.

"It is not necessary that payment for such transportation be made in money. It is sufficient if the passenger by his presence in the automobile or by service or assistance to the operator in making the trip, compensates the operator or the owner in a material or business sense as distinguished from mere social benefit or nominal or incidental contribution to expenses. * * *"

The court then proceeded to enumerate, as follows, those situations and supportive cases which could well constitute the rider as having given payment for such ride:

"* * * (1) When the carriage is of a prospective purchaser of property which the automobile host has for sale and the trip is made for the purpose of inducing a sale * * *; (2) when the automobile host has a financial or business interest in the time or service of the passenger and the purpose of the transportation is to take the passenger to or from his place of employment * * *; (3) when the passenger is making the trip to assist the automobile host in arriving at the latter's destination or to perform some service for the latter's benefit * * *; (4) when a substantial or tangible benefit is conferred upon the automobile host in lieu of and for the transportation * * *; (5) when the automobile host and passenger embark on a joint adventure or enterprise in which each is equally or similarly interested, and which adventure or enterprise is of such moment and character as to indicate that payment is the motivating influence in providing the transportation * * *."

The Supreme Court in the case of Miller v. Fairley (1943),141 Ohio St. 327, affirmed the reasoning as set forth inDuncan v. Hutchinson, supra, and stated that the precise question to be answered in determining the guest or passenger status of a rider was whether the trip was one of a purely social nature or whether it had a business aspect.

In both Duncan v. Hutchinson and Miller v. Fairley, there had been some monetary payment by the rider for the transportation, but in the prior case the court held that the trip being of a purely social nature, the offer of payment was a mere courtesy or social amenity rather than a payment for transportation.

The court, in Miller v. Fairley, presented a very interesting analysis as to what are the indicia as to whether a trip has a social or business aspect. Such indicia were noted as follows at page 337 in the opinion:

"* * * (a) Nature of the relationship between the motorist and the party transported. Are they social friends, strangers, or business associates? (b) Nature or object of the trip. Is the trip made for pleasure or social recreation, or is it made for business reasons? (c) Nature of the arrangement as to whether it is casual or whether there is a definite and specific contract. (d) Is the arrangement an isolated instance, incidental in nature, or does it have an element of permanency and continuity? (e) Nature of the payment. Is it incidental or is it fixed and certain? (f) Is the payment adequate or inadequate for the service rendered? * * *"

Subsequently, in 1949, the Supreme Court had occasion to again construe the guest statute in the case of Hasbrook v.Wingate, 152 Ohio St. 50, which case defined a "guest" under the statute thusly at paragraph three of the syllabus:

"Where, in the carrying of a rider, a motor vehicle's direct operation tends to promote the mutual interests of both the rider and driver, thus creating a joint business relationship between them, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a ``passenger' and not a ``guest'; but if the carriage confers a benefit only on the rider and no benefit other than such as is incidental to hospitality, good will or the like is conferred on the driver, the rider is a ``guest'."

The court established some additional criteria for the existence of a passenger status that had not previously been enunciated by the court.

Speaking through Judge Hart, the court stated, at page 55:

"* * * The benefit which must be present to remove the rider from the category of ``guest' imports some contractual relation between the parties to which such benefit is referable. * * * Under such rule the test whether a ``passenger' status existed at the time of an accident, resulting in injury to the passenger, is whether the motorist host could recover in an action at law for the reasonable or agreed value of the transportation furnished. * * *"

One of the underlying principles, as found in Hasbrook, is to the effect that there must be some mutual intention on the part of both rider in, and the driver of, the motor vehicle to create the status of "passenger" before it can come into being.

Again, in Birmelin v. Gist (1954), 162 Ohio St. 98, the Supreme Court appeared to be stressing the contractual relationship between the parties as a necessary requirement in the establishment of a "passenger" status. The first paragraph of the syllabus of Birmelin is as follows:

"Under the guest statute, Section 6308.6, General Code (Section 4515.02, Revised Code), one who is riding in a motor vehicle with the owner-operator or person responsible for the operation thereof is a guest and not a paying passenger, unless there is shown a contractual arrangement, express or implied, for the payment of compensation to the owner or driver for the transportation furnished or he is rendering a benefit to the driver primarily for the attainment of some objective of the latter."

In the case of Burrow v. Porterfield (1960), 171 Ohio St. 28, the court found that a passenger status was established in a fact situation where the rider, a youth leader in a church, had accompanied the pastor of the church to a church conference.

The court, in its decision, pointed out that the "right of recovery" test as set forth at paragraph four of the syllabus inHasbrook, supra, was never intended to be applied as a rider-status test except in cases dealing with express or implied contracts for transportation.

In Burrow, the court, speaking through Judge Matthias, reviewed the Ohio cases previously decided, and concluded that a rider is a passenger, and not a guest within the purview of R. C. 4515.02, where one of the enumerated relationships between driver and rider exists. These are set forth within the body of the majority opinion herein.

The court, in Burrow, concluded that the driver in that case had waived the protection of the guest statute by accepting a material or business benefit from his rider. The theory upon which such conclusion was based is contained in the following language of the court, to be found at page 37 in the opinion:

"* * * A pastor is obviously vitally interested in improving his church and the adequacy of its functions; indeed, it is hisbusiness to strive for such improvements. If the attendance of church leaders and workers at an educational conference, such as the one involved herein, would benefit a church, reasonable minds could find that a pastor, as head of a church and the single person most responsible for the success of church activities, would also materially benefit from the attendance of such persons."

In the case of Hogan v. Finch (1966), 8 Ohio St.2d 31, the court held that it was proper for the jury to have found the rider to be a passenger where such rider, by request of the driver, prior to the conveyance had performed certain baby-sitting functions at a swimming pool for the driver in return for a ride home.

One of the most recent cases determining the applicability of the guest statute was Stiltner v. Bahner (1967), 10 Ohio St.2d 216, in which the court held that the benefit of the rider's company and companionshp, even where requested by the driver, is not such a material consideration as may constitute payment, so as to remove the rider from the status of a guest.

The court again reviewed its prior decisions in the field and set forth a very complete and detailed statement of criteria for the determination of whether a rider is a "guest * * * while * * * being transported without payment" within the meaning of R. C.4515.02.

The court, at page 219, set forth such criteria as follows:

"Payment, within the meaning of Section 4515.02, Revised Code, must be payment or benefit accepted or agreed upon by the driver as consideration for the transportation. However, such payment or benefit need not be money. It is sufficient that the guest, by his presence in the automobile, renders service or assistance intended to benefit primarily the driver, or intends to rendered service or assistance at the destination which will primarily benefit the driver, or has before the trip rendered such service or assistance, if the benefit or service is material, as distinguished from a mere social benefit, or nominal or incidental contribution to expenses."

Applying the facts of the instant case to the applicable law, and particularly to the specific language of the criteria as set forth by the court in Stiltner v. Bahner, I must conclude that the plaintiff John Hyer was a "guest" as a matter of law, within the purview of R. C. 4561.151.

It is not contended that there was any contract, express or implied, for the provision of transportation by the defendants to the plaintiffs. In fact, the testimony shows that Hyer had not been acquainted with Velinoff prior to the morning of the flight, so there was no prior arrangement between the parties. Nor is there any evidence of any continuing arrangement for transportation of Hyer by Velinoff.

Neither is it contended or argued that there was any actual monetary consideration offered or paid. Therefore, the adequacy or sufficiency of consideration is not in issue.

As previously stated, the nonmonetary benefit of the rider's company or companionship will not constitute "payment," and this we hold to be so whether the society and company is between personal friends or business acquaintances, in the absence of a showing of a joint enterprise.

The defendant Velinoff only generally knew Hyer, but had not previously had any dealings with him. The facts show that Hyer did not work directly with the subcontractors, but dealt with them only through the general contractor.

It might be argued that Hyer was accompanying Sherwood, the construction manager of Multicon, to Cleveland to view the construction progress and, therefore, would be equally in position to be in contact with the subcontractors and with the status of their work and, therefore, would theoretically be in position to render a benefit or perform a service for this particular subcontractor.

This philosophy did, in fact, give the author of this dissent a great deal of difficulty, but there was no evidence adduced by the plaintiff to show that he had, in any way, bestowed a favor or performed a service for the defendant Velinoff.

The evidence fails to disclose that there was any discussion, during the flight, of the project in which the defendant was engaged for Multicon Construction Corporation. Nor was there any evidence relating to any special consideration by way of promises of assistance in acceptance of the defendant's work, or assistance in obtaining the construction draw, or for any other favors hopefully to be granted in return for the transportation being rendered.

Alluding specifically to the criteria as set forth inStiltner v. Bahner, can it be said that reasonable minds could have concluded that there was any payment, benefits, or promises accepted or agreed upon by the parties as consideration for the trip to Cleveland within the meaning of Hasbrook v.Wingate, supra? I think not.

Has Hyer, by his presence in the airplane, rendered a service or assistance intended to benefit primarily the pilot Velinoff, or the Mar-Vel Corporation, within the meaning of Dorn, Admr., v. North Olmsted, supra? I think not.

Did the rider, Hyer, intend to render a service or assistance at the destination which would primarily benefit the pilot, or the defendant corporation, within the meaning of Burrow v.Porterfield, supra? I do not believe the evidence would support such a finding.

Had the plaintiff Hyer, before the trip, rendered such service or assistance to Velinoff within the framework of Hogan v. Finch, supra? I think the evidence demands a negative response.

As noted by the court in Burrow v. Porterfield, at page 35, "the status of a rider in a motor vehicle may properly be ascertained only by careful analysis of the relationship which exists between rider and driver and a similar study of any benefits to the parties accruing as a result of such relationship." I hold that the same philosophy may pertain to rider and pilot.

After a close analysis of the relationship of the parties in the case before us, I have concluded that there is an absence of a showing by the plaintiffs that there were any benefits agreed upon, or accepted, by the defendant Velinoff as pilot of the plane, which benefits specifically flowed from the offer and acceptance of conveyance to Cleveland, Ohio.

It is to be conceded that there was a business relationship of sorts between the defendant Velinoff, as a subcontractor for Multicon Construction Corporation, and the plaintiff Hyer, an architect employed by Multicon, the limited partnership.

However, in order to avoid the operation of the guest statute, there must be more than a showing of a related business interest, or some business association between the parties.

There must either be a showing of a joint enterprise, where both parties had an equal and common business purpose in the trip, or the other elements of benefits or services performed or to be performed as consideration for the conveyance must be present.

Such are not the facts in this matter. Reasonable minds could have come to only one conclusion within the framework of the applicable law as pronounced by the Ohio Supreme Court, and that is that the plaintiff Hyer was a "guest" within the purview of R. C. 4561.151. Accordingly, I must disagree with the majority and reject assignment of error number one.

Relating to assignments of error numbers two and three, the exclusion of evidence as to the relationship of Multicon, the limited partnership, and Multicon Construction Corporation, I believe that the exclusionary ruling of the trial court was not prejudicial error.

Even though such evidence had been admitted in order to establish the relationship of the business entities known as Multicon, and to establish the dollar business volume of Mar-Vel with the Multicon Contruction Corporation, this evidence would not have provided the further needed elements to establish the plaintiff Hyer's status as a passenger rather than a guest under R. C. 4561.151.

The judgment of the trial court should, accordingly, be affirmed.