At the outset we note the quotation from the dissent inBertelstein v. Marks, supra. The question, "Who is a passenger?" was not in this case. The plaintiff in her petition asserted that she was a passenger. Her original action was against the defendant Marks, against whom she charged negligence. Marks did not answer and plaintiff took a default judgment against him in the sum of $2,500. Marks was insured with the defendant, The Travelers Indemnity Company, against which the plaintiff instituted a supplemental action based upon a policy of insurance held by Marks. The defendant company set up that it was not liable because of a provision in the policy which excluded the use of the automobile by the insured in carrying passengers for a consideration. Thus the plaintiff asserted that she was a passenger. Marks did not deny it. The insurance company admitted it and, because of the admission, asserted that it was not obligated to pay the insured under the policy. The simplest principle of pleading established the status of the plaintiff as a passenger. Any discussion of this question was not germane to any issue raised in the case. It was the claim of the plaintiff that the language of the policy, "carrying passengers for a consideration," did not exclude coverage of the insured by a single instance of the carrying of one passenger only, which fact the evidence disclosed. The quoted part of the dissent from theBertelstein case is however pertinent here.
No good purpose can be served in this case by a discussion of authorities in states other than Ohio. There is no doubt that there is a divergence of opinion *Page 264 outside of Ohio as to who is a passenger or a guest when riding in an automobile. Fortunately, since the instant case was submitted and as recently as March 23, 1938, the Supreme Court of Ohio in the fourth paragraph of the syllabus of Dorn, Admr., v.Village of North Olmsted, supra, has defined the term "guest" under Section 6308-6, General Code:
"Within the meaning of Section 6308-6, General Code, a guest is one who is invited, either directly or by implication, to enjoy the hospitality of the driver of a motor vehicle, who accepts such hospitality and takes a ride either for his own pleasure or on his 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."
This was the language employed in the charge by the trial court in the Dorn case and it was the identical language employed in the general charge by the trial court in the instant case. Judge Myers, who wrote the opinion in the Dorn case, expressly approves the charge, and the court, by carrying the definition into the syllabus, likewise approves it. Why should we extend our investigation when our own Supreme Court has promulgated the law which is controlling on us?
The trial judge in the instant case likewise properly charged on the subject of what constituted "a passenger." The plaintiff pleaded that she was a paying passenger of the defendant. The defendant denied this averment and claimed that she was a guest. Under the evidence there is clearly presented a question of fact whether the plaintiff was a passenger. The facts disclose that before the plaintiff and her husband started on the automobile trip there was a definite arrangement whereby the husband of the plaintiff paid to the husband of the defendant a certain sum of money, namely, $2, which agreement was satisfactory to the parties. True, it was stated that it was for gas, *Page 265 but what difference does this qualification make? Can it be said, then, as a matter of law that the plaintiff was a guest and not a paying passenger under these circumstances? Did she accept the hospitality of the defendant, taking a ride either for her own pleasure or on her own business without making any return to, or conferring any benefit upon, the driver of the motor vehicle, other than the mere pleasure of her company? For what purpose was the $2 paid?
Here the payment was in money. The trip to be taken was from Dayton to Versailles and return. It seems probable that $2 was fair payment for the cost of transporting the plaintiff and her husband on the trip to be taken. How, then, can it be said that the only thing that they contributed to the trip was the mere pleasure of their company?
The charge is criticized as including the elements of joint enterprise. I do not believe it is subject to that criticism and falls far short of setting forth all the elements of joint enterprise. The trial judge, by way of abundant precaution, included the full language of the Beer case, supra, wherein it is said: "Having a common object or purpose" with the driver in the place where they were going. This is probably surplusage but certainly did not operate to the prejudice of the defendant.
I find no justification whatever under these facts, in the light of the specific, approved definition of a guest in the Dorncase, in holding, as a matter of law, that the plaintiff was a guest. Whether she was a passenger on this record was clearly a question for factual determination by the jury.
There is no prejudicial error in the action of the court in refusing to direct a verdict, nor in the other errors assigned. The case was difficult, but the court tried it carefully and well.
The judgment should be affirmed. *Page 266