DISSENTING OPINION
By GEIGER, J.On first giving consideration to this case, I was of the view that I could concur in *121the opinion of the majority,- on the ground principally that the plaintiff, in the original action, had placed herself in the position of a passenger for consideration, when she obtained her judgment against the defendant.
On giving the matter further consideration, I am of the opinion that the consequences that may arise from a decision to that effect would be so far reaching that I do not now feel inclined to take the position that the plaintiff became a passenger for a consideration when she paid for a portion of the gasoline consumed on the trip taken by herself and her brother-in-law.
Our guest statute, 86308, GC, provides 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 wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”
It will be observed that only when the guest is being transported “without payment” does the provision of wilful or wanton misconduct become operative.
If a guest is being transported by paying a compensation, then the owner is no longer protected by the “wilful or wanton” provision of the statute. But this is far from converting the guest into “a passenger for compensation,” as described in the exceptions of the insurance policy.
Even though the plaintiff may have alleged in her petition that she was a passenger, she was not a passenger by virtue of her contribution to the gasoline cost, as such a relationship is ordinarily interpreted, unless all others under like conditions would become passengers, and that is too serious a consequence to permit to arise simply because a certain plaintiil alleges in her petition that she was a passenger.
The insurance ccmpany was notified of the action, and had a r'ght to defense on the ground that she was a guest and that no “wilful or wanton” misconduct had been plead.
“To recover, a guest must plead facts that reveal on their face the elements of wilfulness and wantonness.”
Vecchio v Vecchio, 131 Oh St 59.
She did not so plead, and her right to recover, if she had it, was based upon the fact that she was being transported with pay.
In the present case, it is not necessary to pass upon' the question as to whether one who contributes to the gasoline, or any other expense common to the trip, is then being transported “with pay.”
It is, however, necessary to determine whether or not one so contributing becomes no longer a guest but a passenger, so as to fall -within the exceptions set out in the insurance policy.
While we may speak of a five passenger car, in common acceptation those who ride in that car, on the invitation of the owner of the car, are not passengers as that term is ordinarily understood. A- passenger is one who presents himself to one who is engaged in transportation, either as a common carrier or as one hauling on special occasions, to be transported for a consideration.
While the word “passenger” is frequently used in reference to the transportation of individuals by owners of automobiles, where the designation of such person should more probably be “guest,” yet I am of opinion that the payment of part of the gasoline cost by a sister-in-law to her brother-in-law does not constitute the person so paying a passenger within the meaning of the insurance policy.
It will be noted-that Item 5 on page 1 of the policy, provides the purpose of use as defined in (a) and (b) and excludes the renting or livery use of the automobile, and the carrying of “passengers for a consideration.” (d). The automobile shall be insured for renting, livery, carrying passengers for a consideration, the business of demonstration or testing, or towing of any Trailer, only when such uses are definitely declared and rated.
It will be observed that all the exceptions, other than that of “carrying passengers for a consideration” relate to business transactions. The renting or the livery service, or the business demonstrations or towing are specially excepted, and in my judgment give character to the meaning to be given to the term “carrying of passengers for a consideration.” In other words, I am of the opinion that the exception is to cover the business or occupation, or financial enterprise of the carrying of passengers.
It is evidently to be regarded as such a use as would permit a permanent form of insurance.
*122If insurance policies ordinarily purchased by a private owner are to afford him protection for the ordinary use of his car, but is to deny protection when a friend contributed to the common expense of a guest trip, then the protection of such policies will be changed from day to day or from hour to hour, as the insured may accept a small contribution to the expense of a friendly trip.
Under the wording of bur guest statute, there is no intimation that a guest contributing to the general expense does not as a matter of fact continue to be a guest. A “paying guest” is not unusual. It is a common practice among groups of friends to contribute to an automobile trip, primarily for their pleasure a just proportion of the expense, by the payment of the gasoline and oil.
Can it be said that this mutual agreement destroys the reciprocal hospitality among friends, and makes the owner of the car practically a commercial hauler receiving compensation for his services? Such a holding would disrupt many trips of intimate friends.
The guest statute was passed to protect the owner of the vehicle against liability for the injury to one who is his guest, unless the owner is guilty of wanton misconduct.
Incidentally, the statute provides protection to the insurance company from liability arising out of such relations.
It is contemplated by the statute to render the owner liable for ordinary negligence, or for want of an even higher degree of care than was required before the enactment of the guest statute simply because he receives some contribution to the common expense?
Are insurance companies which have received compensation for the policy to be relieved because two friends may agree to go fishing or to a ball game in the automobile of one, with the other contributing to the gasoline?
There is another very serious danger faced by the owner of the automobile who may have accepted payment from his guest. "While transporting such person he may injure one who is a total stranger to him, by his negligent operation of his automobile. If he has accepted a pittance as a contribution to his gas, he may be faced with the provision in the policy stating that the company is not liable because he is transporting “a passenger for consideration.”
There have been some cases in Ohio involving this question, which have not been in harmony.
See: Beer v Beer, 4 Ohio Opinions 84; Casper v Higgins, 4 Ohio Opinions 164. In the case of Snyder v Milligan, 6 Ohio Opinions 292, there is a discussion of the term “guest.” See also 193 NE (N. Y.) 334; 167 SW 1095; 285 Fed. 959; 169 SE 594; 168 Atl. 919; 202 Pac. 82, 16 Fed. Suppl. 799.
Í am, therefore, unable to agree with ray associates, ^in holding as they do in the instant case that the insurance company can escape liability by now claiming that the injury occurred while the insured was carrying a passenger for consideration.
As stated before, the insurance company had an opportunity to make the defense on the ground that its insured was not liable to his guest, and that there was no wilful "or wanton misconduct set out in the petition, as required in the Vecchio case, above referred to.