Opinion · Ohlaw Ohio
CLINGER v. DUNCAN, 166 Ohio St. 216 (1957)
CLINGER, APPELLEE v. DUNCAN, APPELLEE; LEMEN, APPELLANT., 141 N.E.2d 156 (Ohio 1957)
- Type
- Opinion
- Court
- Ohio
- Jurisdiction
- Ohio
- Date
- 1957-03-13
- Topic
- general
CLINGER v. DUNCAN, 166 Ohio St. 216 (1957) 141 N.E.2d 156 CLINGER, APPELLEE v. DUNCAN, APPELLEE; LEMEN, APPELLANT. No. 34855Supreme Court of Ohio. Decided March 13, 1957.
Citator
UpLaw has not yet analyzed CLINGER v. DUNCAN, 166 Ohio St. 216 (1957). The absence of a flag is not a finding that it is good law.
CLINGER v. DUNCAN,166 Ohio St. 216(1957)
141 N.E.2d 156
CLINGER, APPELLEE v. DUNCAN, APPELLEE; LEMEN, APPELLANT.
No. 34855
Supreme Court of Ohio.
Decided March 13, 1957.
1. Section 6308-6, General Code (Section4515.02, Revised Code), commonly known as the "guest statute," being in derogation of the common law, is to be strictly, albeit reasonably, construed.
2. Such section, providing that the operator of a motor vehicle shall not be liable for an injury to a guest, resulting from the operation of the vehicle, while such guest is beingtransportedwithout payment thereforin or upon suchvehicle, unless the injury is caused by the willful or wanton misconduct of the operator, is ordinarily without application where the guest has alighted from the vehicle and is injured by the negligence of the operator while the guest is out of the conveyance. In such circumstances, the rule of ordinary negligence prevails, and in a proper case the trial court may rule as a matter of law that the host-guest relationship did not exist.
3. A municipal ordinance which provides that the motor or engine of a motor vehicle shall not be permitted to run while such vehicle is standing on the street, unless a competent person is in charge of and in and upon such vehicle, is a valid enactment containing a specific requirement for the safety of others, and one who comes within the purview of such ordinance and violates it is negligent as a matter of law.
4. In a tort action, wherein the above ordinance becomes material and is admitted in evidence, it is proper to elicit from the defendant on cross-examination that he was charged in a criminal proceeding with a violation of the ordinance and pleaded guilty to the charge.
5. Generally, negligence and proximate cause are questions for the determination of a jury under appropriate instructions of the court, and in a situation where the owner-operator of a motor vehicle leaves it standing with the motor running, and a guest-rider therein inadvertently and unintentionally or in fright and excitement moves the gear-control lever, whereby the vehicle is set in motion and another is injured thereby, the questions of negligence and proximate cause are correctly left to the jury, and where such issues are submitted free from prejudicial error and the jury finds that the owner-operator was negligent and that such negligence wastheproximate cause of the injury, that determination will not be disturbed on appeal.Page 217
Inez M. Clinger was injured by an automobile owned by Emma G. Lemen. She instituted the present action in the Court of Common Pleas of Summit County against Lemen, hereinafter referred to as defendant, and Ada E. Duncan to recover damages for such injuries upon the claim that their joint negligence was directly responsible therefor. Plaintiff was awarded a verdict and judgment in the trial court against defendant alone, and on appeal on questions of law to the Court of Appeals that judgment was affirmed.
The allowance of a motion to require the Court of Appeals to certify the record brings the cause here for decision on the merits. Additional facts are stated in the opinion.
On the trial of the action, the trial court, apparently following the case ofEshelmanv.Wilson,83 Ohio App. 395,80 N.E.2d 803, ruled, as a matter of law, that plaintiff was not a guest at the time of her injuries, within the terms and intendment of Section 6308-6, General Code (Section4515.02, Revised Code), commonly known as the "guest statute."
Section 120, Chapter 24 of the Code of the City of Akron, was admitted in evidence and reads as follows:
"The motor or engine of a motor vehicle or motorcycle shall not be run or permitted to run when such vehicle or motorcycle is standing in any street or highway unless there is a competent person in charge of and in and upon said motor vehicle or motorcycle."
With reference to the quoted ordinance, the court told the jury that if a violation thereof on the part of defendant was proved by the greater weight of the evidence, she was negligent as a matter of law.
Also left to the jury for its determination, in a special instruction and in the general charge, was the question of proximate cause.Page 219
Defendant, through her counsel, contends that the guest statute applies in the present case, and that, therefore, she was entitled to a directed verdict or to judgment notwithstanding the verdict, and that, otherwise, she was denied a fair trial because of the intervention of reversible error during the trial.
Applicable Section 6308-6, General Code (Section4515.02, Revised Code), reads 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 willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle."
In the absence of the so-called guest statute, the general rule is that the person operating or responsible for the operation of a motor vehicle must use reasonable and ordinary care for the safety of a guest therein and is liable for injuries proximately caused by negligence in the handling of the vehicle. 60 Corpus Juris Secundum, 977, Motor Vehicles, Section 399 (1).
Guest statutes, like the one in Ohio, being in derogation of the common law, are to be strictly, albeit reasonably, construed.Millerv.Fairley,141 Ohio St. 327,48 N.E.2d 217;Vest, aMinor, v.Kramer,158 Ohio St. 78,84,107 N.E.2d 105,108; 60 Corpus Juris Secundum, 996, Motor Vehicles, Section 399 (3).
In relation to the instant case the key words in Section 6308-6, General Code, are, "while beingtransported * * * in orupon said motor vehicle." (Emphasis supplied.)
The word, "transport," in its ordinary and accepted meaning implies movement — the carrying or conveying of persons or things from one place to another.
In the opinion of a majority of this court, when plaintiff left defendant's automobile to summon Hunsicker, she temporarily, at least, removed herself from the category of one beingtransportedin or upon a motor vehicleand would not have resumed a guest status until she again entered the car. As the facts show, she never got that far.
To reach a contrary conclusion, it is necessary to supplyPage 220the statute by judicial fiat with words and a meaning that the General Assembly did not see fit to adopt.
Strongly supporting our position is the recent case ofBoydv.Cress,46 Cal.2d 164,293 P.2d 37. There the host-driver stopped his automobile at the side of the road apparently to examine the tires and to stretch and relax briefly. His guest stepped out of the right side of the vehicle, leaving the right door open, and was struck by the door and injured when the car suddenly rolled backward. California has a guest statute similar to ours. The guest sued his host for damages grounded on negligence and was successful in the trial court, and the Supreme Court of California in affirming the judgment for plaintiff had the following to say in the course of the opinion:
"This consistent line of authority establishes the rule that the protection of the guest statute extends only to injuries suffered `during the ride' in the sense that the plaintiff remained in or upon the vehicle at the time of the accident. After the guest steps out of the automobile, he enters into a pedestrian or other nonguest status. * * * It is not important that the parties' intentions indicate that the plaintiff's nonguest status will exist only for a momentary interlude. When he departs from the host's automobile, even momentarily, the `guest' is entitled to hold the host-driver to the same standard of conduct as a stranger."
In other cases, more or less resembling the instant one as to facts, different courts have reached different conclusions depending to a large extent on the precise circumstances involved and upon the peculiar wording of the guest statutes in force in the particular jurisdictions. Most of the cases on the subject are collected in the annotation in 50 A.L.R. (2d), 974, where a variety of holdings will be found.
In the case at bar, we think the trial court correctly determined that plaintiff was not a guest within the meaning of the Ohio guest statute, strictly construed, at and immediately before the time she was injured, and that the rule of ordinary negligence was properly applied.Vestv.Kramer, supra.
Defendant insists that Section 120, Chapter 24 of the Code of the City of Akron, above quoted, is unconstitutional, invalidPage 221and of no legal force and effect; that its admission in evidence was prejudicially erroneous; and that the trial court committed "grievous" error in charging that the violation of such ordinance, if proved, would constitute negligence as a matter of law.
As we read the ordinance, the violation of which carries a penalty, it is plain and unambiguous, was within the power of the municipality to enact, and in definite and understandable language prohibits a specifically described practice which could imperil the safety of others. The word, "competent," as used in the ordinance is one of common usage and its meaning is familiar to the average person.
Besides, in its general charge, the court told the jury:
"In this case a competent person is one who is able or qualified mentally and physically and through experience to operate said vehicle. In charge of, means to have the care of or the control of."
There are many statutes relating to vehicles which resemble in purpose and intent the ordinance in issue. For example, compare Sections 6307-30, 6307-67, 6307-71 and 6307-101, General Code (Sections4511.30,4511.69,4511.73and4513.29, Revised Code). And a number of municipalities have enacted ordinances similar to the one existing in Akron.
"Under an authority to regulate the movement of vehicles on the public streets, it may be made unlawful to leave a motor vehicle unattended on the public street with its motor running or without first setting the brakes." 60 Corpus Juris Secundum, 145, Motor Vehicles, Section 28f.
In the third paragraph of the syllabus ofEisenhuthv.Moneyhon,161 Ohio St. 367,119 N.E.2d 440, this court laid down the following rule:
"Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se."
It is our view that the ordinance in question is valid and was properly admitted in evidence, and that the instructions with respect thereto in relation to defendant were correct.Page 222
In the circumstances presented, it can hardly be said that, when defendant got out of her automobile shortly before plaintiff's injuries, she placed it under the control and in charge of Duncan.
Neither do we think there is any real merit in the claim that the trial court erred in permitting counsel for plaintiff to elicit from defendant on cross-examination that she was served with a citation from the Akron Municipal Court charging her with violation of the above-quoted ordinance, growing out of the incident wherein plaintiff was injured, and that through her attorney she pleaded guilty to the offense charged. In support of this position, attention is directed to the ninth paragraph of the syllabus in the case ofFreasv.Sullivan,130 Ohio St. 486,200 N.E. 639, which recites:
"A plea of guilty by an alleged tort-feasor to a charge of reckless driving, predicated upon a collision in which a person was injured, is admissible in an action brought against him by the party injured."
See, also, annotations, 31 A.L.R., 261, 278; 130 A.L.R., 690, 699; and 18 A.L.R. (2d), 1287, 1307.
Now as to defendant's remaining contention that the question of proximate cause as to her was improperly submitted to the jury. It is elementary that in an action to recover compensation for the consequences of a claimed negligent act, liability is dependent, first, upon a showing of negligence and, second, upon proof that such negligence was a proximate cause of the result.
The term, "proximate cause," is often difficult of exact definition as applied to the facts of a particular case. However, it is generally true that, where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established, and the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability.
In the case before us, it is clear that defendant deliberately left her automobile with the motor running. The unfortunate incidents which followed could logically be attributed to this act as the dominant and primary cause thereof — the proximatePage 223cause, if you please. Had the defendant stopped the motor or set the hand brake securely before leaving her car, Duncan's subsequent unintentional conduct in making contact with the lever, and perhaps the accelerator, would have been harmless and inconsequential.
Ordinarily, the existence of both negligence and proximate cause are, in a jury trial, questions of fact for the determination of the jury under proper instructions from the court; and we think the trial court here correctly left the element of proximate cause to the jury. By its answer to a special interrogatory and by its verdict it found defendant negligent in leaving her car with the motor running in violation of the ordinance, and that such negligence wastheproximate cause of plaintiff's injuries. Such findings, in our opinion, are supportable by the evidence.
We have examined the special instruction on proximate cause given the jury before argument at plaintiff's request and the court's general charge on that subject and are satisfied that they were substantially correct and not prejudicial to the defendant.
Defendant neither pleads nor raises the issue of contributory negligence, nor is any claim made that the amount of the verdict is excessive.
No error being discernible in the judgment of the Court of Appeals, such judgment is affirmed.Judgment affirmed.
WEYGANDT, C.J., BELL and MATTHIAS, JJ., concur.
STEWART, TAFT and HERBERT, JJ., concur in the syllabus in part but dissent from the opinion and judgment.
As stated in the majority opinion, the key words of Section 6308-6, General Code (Section4515.02, Revised Code), are, "while being transported * * * in or upon said motor vehicle."
In 60 Corpus Juris Secundum, 996, Motor Vehicles, Section 399 (3), it is stated:
"Such [guest] statutes, being in derogation of the common law, must be strictly construed against the host and liberally construed in favor of the guest. Although they should be construed with their intent and purpose in view, and consideration given to all the language employed, they should not be extended beyond correction of the evils and attainment of the social objects which it may be assumed were the inducing reasons for their enactmentor so restricted as to defeat or impair thosepurposes." (Emphasis added.)
Among cases from various jurisdictions cited under this statement is the case ofMillerv.Fairley,141 Ohio St. 327,48 N.E.2d 217(in which decision two of the majority in the instant case concurred). The following paragraphs are stated in the syllabus in that case:
"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."
Although that case turned on the question of payment for the transportation (which, of course, is not involved here), I am impressed with the logic of that decision. Reference is therein made (page 336) to the case ofDuncanv.Hutchinson,139 Ohio St. 185,39 N.E.2d 140, which held that "the sharing of the cost of gasoline and oil consumed on a motor vehicle trip taken for mutual pleasure or social purposes, without any business aspect, does not transform into a passengerPage 225one who without such exchange would be a guest, and is not `payment' for transportation within the meaning of the Ohio guest statute * * * so as to make the automobile host liable to such guest in the absence of wilful or wanton misconduct."
In referring to theDuncan case, the court in the opinion in theMiller casesaid (page 336), "This court believes that a proper test was applied in the construction of the statute in question in that case and must, likewise, be applied to the facts in this case." Granting that the question in issue in both the above cited cases was one of whether payment took the injured party out of the `guest' category, nevertheless a test was applied to the facts in each case. What have we here?
Each defendant in her answer (as read by the trial court in its charge to the jury) alleges certain acts by Lemen at a time when plaintiff was re-entering said automobile with her body partly in and partly out thereof. These allegations are denied in the general denial of plaintiff's reply, but on the direct examination of the plaintiff Clinger she testified that she had her hand on the back of the front seat and that she removed it to get her balance and separate herself from the car after it started in motion. The serious injury to her leg did not occur, of course, until the car was moving forward after having backed up a considerable distance. On cross-examination, Clinger testified that she had her hand on the back seat attempting to pull it forward.
It is quite apparent from the analysis of the testimony of Clinger that although her feet were still on the ground she had been and was making an effort to get into the back seat of the car by attempting to move the front seat forward when the car started in motion backwards, at which time she attempted to extricate herself from contact with the car.
In view of all these circumstances, it is my view that she had resumed her status as a guest within the meaning of the statute. It would seem a far more sensible rule to hold that, where the intent of all the parties is to resume the transportation, and where a person who having been a guest until getting out of the car has any part of his body "in or upon" the car for resumption of the trip, he thereby re-establishes his status as a guest.Page 226
In view of the closeness of division in this case, attention is called to the case ofHannabalsonv.Sessions,116 Iowa 457,90 N.W. 93, 93 Am. St. Rep., 250. Although decided in 1902 on events occurring in 1898 (long before guest statutes), it is still pertinent to the principle under consideration here and, may I add, makes delightful reading in its entirety. There an action for assault was begun by the wife of one neighbor against their adjoining neighbor, claiming that the defendant had struck her arm while she was leaning over a fence erected between their properties. Defendant contended that he was merely protecting a ladder hanging on a peg on his side of the fence.
Paragraph two of the syllabus states:
"One who extends her arm over a fence dividing her own premises from those of another is a trespasser, though her body remains on her own side of the fence."
In the opinion we find this sage statement:
"It is one of the oldest rules of property known to the law that the title of the owner of the soil extends, not only downward to the center of the earth, but upwardusque ad coelum, although it is, perhaps, doubtful whether owners as quarrelsome as the parties in this case will ever enjoy the usufruct of their property in the latter direction. The maxim,"ubi pars est ibiest totum,"— that where the greater part is, there is the whole, — does not apply to the person of a trespasser, and the court and jury could therefore not be expected to enter into any inquiry as to the side of the boundary line upon which plaintiff preponderated, as she reached over the fence top. It was enough that she thrust her hand or arm across the boundary to technically authorize the defendant to demand that she cease the intrusion * * *."
The reasoning of that opinion should be persuasive in the instant case.
The majority opinion leans strongly on the case ofBoydv.Cress,46 Cal.2d 164,293 P.2d 37. Also, it states that California has a guest statute similar to ours. The California statute, so far as pertinent to the sections here, provides: "No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride * * * has any right of action for civil damages against the driver ofPage 227such vehicle * * * on account of personal injury to * * * such guest during such ride, unless the plaintiff in any such action establishes that such injury * * * proximately resulted from * * * wilful misconduct of said driver." The key words, "in or upon," are not in that statute. The facts in that case clearly distinguish it from this one. The plaintiff there had stepped out of the car thereby terminating his guest status and was not in contact with the car until it hit him as it backed up. He certainly had not attempted to re-enter it.
Reference is also made to the case ofVest, a Minor, v.Kramer,158 Ohio St. 78,107 N.E.2d 105. In that case a minor, who was a Boy Scout, was held not to be a guest where he was riding on a trailer attached to the automobile of defendant who was the acting assistant scoutmaster and who was engaged with the plaintiff in a scrap paper collection. The trial court granted the motion of defendant for judgment on the pleadings and opening statement of counsel for plaintiff. That decision was reversed by the Court of Appeals which remanded the cause to the trial court. This court affirmed the judgment of the Court of Appeals by a 4 to 3 vote. Stewart, J., did not concur in the opinion but merely held to the view that there were allegations in the petition and language in the opening statement of counsel for plaintiff from which an inference could be drawn that he was not a guest in defendant's motor vehicle. TheVest caseis not, in my opinion, persuasive here.
It is true the Legislature could have used more comprehensive language such as that contained in insurance policies (seeMaddenv.Farm Bureau Mutual Automobile Ins. Co.,82 Ohio App. 111,79 N.E.2d 586), but if we follow the approach used by this court in theMiller case, as indicated in the syllabus, the intent and purpose of the guest statute would be better served to rule that Clinger had re-established her status as a guest under the facts presented or at least to require submission to the jury of the issue of fact whether Clinger was "in or upon" the automobile when it started in motion.
It is also my view that the jury should have been charged generally with respect to the guest statute as requested by both defendants, although I do not take the position that special requests Nos. 1 and 2 as presented by defendant Lemen shouldPage 228have been given in their entirety. On the basis of this dissent, I do not consider it necessary to reach the remaining questions of proximate cause and those relating to the municipal ordinance. The failure of the trial court to charge on the issue of Section 6308-6, General Code (Section4515.02, Revised Code), in the light of the facts presented, constituted, in my view, such error that the judgment of the Court of Appeals should be reversed and the cause remanded for new trial. I, therefore, dissent from the judgment herein.
STEWART and TAFT, JJ., concur in the foregoing dissenting opinion.