Opinion
No. 36170
Decided July 6, 1960.
Motor vehicles — Guest statute — Section 4515.02, Revised Code — Sharing cost of gasoline and oil on vacation trip — Not payment for transportation — Guest not transformed into passenger — Wanton misconduct not established.
APPEAL from the Court of Appeals for Mahoning County.
Defendant and his wife were going to take an automobile vacation trip to the West and invited plaintiff and his wife, friends for many years, to accompany them. No business aspect was involved nor was one contemplated. After repeated requests by defendant's wife, plaintiff and his wife agreed to go, only if they were permitted to pay half the gasoline and oil expenses. This was agreed upon.
On the second morning of the trip, it was drizzling rain when they started. Defendant was driving about 40 to 45 miles an hour, and when he attempted to overtake and pass a truck going in the same direction, the car skidded and struck a guardrail, resulting in injuries to the plaintiff.
In this action brought by plaintiff to recover for the injuries sustained, it is alleged in the petition that defendant willfully, wantonly and negligently operated the automobile in an unreasonable and unsafe manner.
In his answer, defendant denies that plaintiff was riding in the automobile as a passenger and that defendant was guilty of willful and wanton misconduct toward plaintiff. The record contains no evidence of excessive speed, of perversity, or of strong remonstrances on the part of either plaintiff or his wife as to the manner of defendant's driving or as to proceeding while it was drizzling rain.
At the close of plaintiff's evidence defendant moved for a directed verdict. The court held that the arrangement for payment of half the gasoline and oil expenses was not sufficient to take the plaintiff out of the guest status and make him a passenger, within the meaning of the guest statute (Section 4515.02, Revised Code), and that there was not sufficient evidence of willful or wanton misconduct to go to the jury; sustained the motion for a directed verdict; and rendered judgment for defendant on the verdict.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Marvin Traxler and Mr. Solomon Malkoff, for appellant.
Mr. William E. Pfau and Mr. William E. Pfau, Jr., for appellee.
This court has held, all the judges concurring, 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 passenger one who without such exchange would be a guest, and is not `payment' for transportation within the meaning of the Ohio guest statute * * * [Section 4515.02, Revised Code] so as to make the automobile host liable to such guest in the absence of willful or wanton misconduct." Duncan v. Hutchinson, 139 Ohio St. 185.
Since the record does not contain sufficient evidence of wanton or willful misconduct on the part of defendant to warrant the submission of such an issue to the jury, the trial court was not in error in directing a verdict for defendant. Helleren v. Dixon, 152 Ohio St. 40.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.