Opinion
No. 68-130
Decided October 16, 1968.
Motor vehicles — Guest Statute — Section 4515.02, Revised Code — Rider a "guest," when — Lack of capacity to assent — Effect.
Under Section 4515.02, Revised Code, anyone who is being transported in a motor vehicle as a recipient of hospitality, or strictly as a gratuitous accommodation, is a guest; and lack of capacity to assent to such types of transportation does not ordinarily remove the one being transported from the status of a guest. ( Lombardo v. De Shance, 167 Ohio St. 431, followed.)
APPEAL from the Court of Appeals for Franklin County.
This action originated in the Court of Common Pleas of Franklin County, with Karen B. Kemp, a minor, by her next friend, LeRoy Kemp, Jr., and LeRoy Kemp, Jr., individually, as plaintiffs, and Dana L. Parmley, as defendant. Epitomized, the petition, containing two causes of action, alleges, as a first cause of action, that about 9:00 a. m. on December 1, 1965, the plaintiff, Karen B. Kemp, a minor eight years of age, was standing near a motor vehicle service station located at the intersection of state route 665 and Shook Road when defendant, a stranger, stopped her motor vehicle and requested Karen to enter it; that such request was without authority from Karen's parents; that Karen entered the vehicle and the defendant then drove toward the schoolhouse which karen attended, with the intention of letting her out there; and that en route defendant's vehicle and another collided, due directly to defendant's negligence, whereby Karen sustained serious injuries in described respects. Karen prays judgment against defendant in the sum of $75,000.
The second cause of action, adopting the relevant allegations of the first cause, alleges that LeRoy Kemp, Jr., is Karen's father and that, by reason of Karen's injuries and as a direct and proximate result thereof, he has incurred and will incur hospital and medical expenses and that he has suffered the loss of services of his daughter, all to his damage in the sum of $25,000, for which amount he prays judgment.
A general demurrer to the petition was sustained by the trial court, and, plaintiffs not desiring to plead further, judgment was rendered for the defendant.
On an appeal on questions of law, that judgment was affirmed by the Court of Appeals, and the cause is now in this court for decision upon an appeal as of right and pursuant to the allowance of a motion to require the Court of Appeals to certify the record.
Messrs. Volkema, Redmond Post, Mr. Clenzo B. Fox and Mr. Roger C. Post, for appellants.
Messrs. Hamilton, Kramer Myers and Mr. Earl L. Hamilton, for appellee.
Does the petition herein state valid causes of action?
Section 4515.02, Revised Code, the so-called guest statute, recites:
"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, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, 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."
The term, "guest," as used in the quoted statute, is nowhere statutorily defined, but it has been interpreted in decisions of this court.
Nearest in point here is the case of Lombardo v. De Shance, 167 Ohio St. 431, 149 N.E.2d 914, 66 A.L.R. 2d 1313, involving a plaintiff who, after becoming voluntarily intoxicated to the point of insensibility, was placed by defendant in his automobile and, later, was injured when defendant drove off the road and into a tree. It was held that under the allegations of the petition no more than negligence was charged. Plaintiff was denied recovery of damages for personal injuries on the ground that her status was that of a guest within the contemplation of the guest statute.
In the cited case, the court unanimously held that under our guest statute "the word `guest' does not require anything more than the giving of * * * hospitality."
Assent to the motor vehicle transportation is not ordinarily necessary. Consequently, a child of tender years may be a guest within the contemplation of the statute.
We think that the Lombardo case is dispositive of the instant one. There are no allegations in the petition herein to indicate that the defendant, in transporting Karen, was engaged in other than the giving of hospitality — the doing of a kindly act of accommodation. See, also, Burrow v. Porterfield, 171 Ohio St. 28, 36, 168 N.E.2d 137, 143, and Stiltner v. Bahner, 10 Ohio St.2d 216, 227 N.E.2d 192.
In this court, appellants challenge the constitutionality of Section 4515.02, Revised Code. Since the constitutionality of that statute was not challenged in either of the lower courts, it cannot be challenged here for the first time. State v. Lynn, 5 Ohio St.2d 106, 110, 214 N.E.2d 226, 230.
We find no error in the judgment of the Court of Appeals herein, and that judgment is affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, DOYLE, SCHNEIDER and BROWN, JJ., concur.
DOYLE, J., of the Ninth Appellate District, sitting for HERBERT, J.