Summary
overruling the prior contrary position as announced in Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61
Summary of this case from Klatt v. Commonwealth Edison Co.Opinion
No. 22251
Decided December 10, 1930.
Negligence — Owner not liable to guest of servant driving automobile — Servant engaged in owner's business, but guest riding without his consent — Guest not rendering necessary assistance to servant in owner's business — Guest a trespasser, not invitee or licensee of owner, when.
1. The owner of an automobile being driven by a servant in the business of the owner within the scope of the servant's employment is not liable for damages to a guest of the servant for injuries caused to such guest by the negligence of the servant while riding in the automobile without the knowledge and consent of the owner, it not appearing that such guest is at the time rendering necessary assistance to the servant within the scope of his employment.
2. Where the owner of an automobile entrusts the same to a servant in the course of the business of the owner, without authority to carry passengers, a guest of the servant riding in the automobile is neither an invitee nor a licensee of the owner, but on the contrary is a trespasser to whom no duty is owing by the owner, except not to wilfully injure him. ( Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A. L. R., 131, propositions 1 and 2 of the syllabus, overruled).
ERROR to the Court of Appeals of Hamilton county.
This cause originated in the court of common pleas of Hamilton county, Ohio, as a suit for damages for personal injuries. The action was first begun by Stanley Crouch against the Union Gas Electric Company and Morris Callahan, an employee of the electric company, known as a "trouble man," whose duty it was to cruise in a designated district of the city of Cincinnati, to inspect arc lights and repair them, if out of order, and to make such house calls as directed. His hours were from 6 p. m. to 2 a. m., and he was forbidden to carry passengers or to enter a private house without specific order. On the night of December 5, 1927, he attended a party at the home of a fellow employee named Buschlie, which party was also attended by Stanley Crouch. Callahan, during the course of the performance of his duties, attended the party twice during the evening, and drank some home brew. On the occasion of his second visit to the party he left with Mr. and Mrs. Crouch and Mrs. Buschlie to take Mr. and Mrs. Crouch to their home, or to purchase sandwiches, the evidence being somewhat in dispute. During this trip, and while in the district where his services were to be rendered, and while driving at a reckless rate of speed, the automobile struck a light pole, and Crouch was severely injured. There was some question as to whether Callahan was on his way to the home of the Crouches, or whether he was going to a restaurant to purchase sandwiches, or whether he was going in the direction of a light which needed repair. Before the case was called for trial Callahan was dismissed from the case without prejudice, and the cause continued against the electric company. At the first trial the jury disagreed. At the second trial a verdict was rendered in favor of the plaintiff for $7,500, upon which judgment was entered.
The Court of Appeals reversed the judgment, and there is some confusion in the record as to the grounds of the reversal. In one entry which has been submitted to this court there is a mere finding of error prejudicial to the rights of the plaintiff in error in the exclusion of testimony in the court of common pleas, and the judgment is reversed and the cause remanded for new trial. In another entry submitted it is stated that there was a total failure of proof in the record that Callahan was guilty of wilful and wanton negligence, or that he was at the time of the injury complained of engaged in the business of the master. The court further found that, by reason of the lower court excluding the testimony of the declarations of Callahan as to the nature of his errand, which amounted to admissions of the servant that he was about to return to the service of the master, the admission of those declarations in evidence would justify a submission of the cause to the jury, and for that reason the cause was remanded for new trial. The cause was admitted to this court upon allowance of motion to certify the record.
Messrs. Bolsinger Black, for plaintiff in error.
Messrs. Philip S.C. Roettinger and Mr. D.Y. Little, for defendant in error.
The facts which in the opinion of this court should control its judgment are that Callahan was employed for the performance of a specific duty which involved the use of a motor vehicle to be furnished by the gas company; that he was forbidden to carry passengers; that his duties were of such character that he required no assistance; that the passengers were his personal guests; and that the accident was proximately caused by his gross negligence.
Assuming that the testimony which was rejected at the trial is competent, and that it would tend to prove that at the time of the accident Callahan was engaged in the prosecution of the business of the master, the question for determination is whether the master is responsible for the gross negligence of a servant to the personal guests of the servant while thus engaged.
This case involves no question of the liability of a master for the negligence of his servant while engaged in the master's business resulting in damages to persons who have not voluntarily placed themselves in a place of danger.
It does not involve the principle decided in Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A. L. R., 1128, that the owner of an automobile is liable for damages resulting from intrusting the machine to an inexperienced, unskilled, or incompetent driver. Nothing in this record indicates that Callahan was unskilled or incompetent.
This record does not involve the responsibility of Callahan, the driver, to his own personal guests, for his negligence. Callahan was voluntarily dismissed from the case.
It involves the sole question of the liability of an owner of an automobile for the negligence of a skilled, experienced driver while using the car by the owner's authority within the scope of the agency (but who has been forbidden to carry passengers) to persons who have voluntarily become passengers in the car without compensation, and without benefit to the owner.
The duty and responsibility owing to a guest by the driver of an automobile, or by the owner with knowledge that the guest is being carried, has been much mooted in recent years, and the law relating thereto is undergoing sweeping changes in many jurisdictions at the hands of courts and legislatures. If this suit were against Callahan, that principle would be directly involved.
Crouch was in no sense a guest of the owner of the car. He was riding contrary to the express inhibition of the owner.
Whatever the relation between Callahan and Crouch, which we do not decide or even consider, the relation of Crouch to the owner of the car must be held to be that of trespasser, to whom no duty is owing except not to wilfully injure him.
The petition alleges that the servant Callahan "wilfully, recklessly, wantonly, carelessly and negligently drove said automobile truck at a high and excessive rate of speed." This allegation would be very pertinent, if the suit were against Callahan, but wilfulness, recklessness, and wantonness cannot be charged against the owner of the car, unless the owner entertained a conscious purpose to do a wrongful act, or unless it be shown that he was indifferent to the safety of others after knowledge of their danger. This principle was declared in Payne, Director General of Rds., v. Vance, 103 Ohio St. 59, 133 N.E. 85. Nothing in this record indicates any such conscious purpose or reckless indifference to the safety of Crouch.
Upon the undisputed facts disclosed by this record, the court of common pleas should have sustained the motion for a directed verdict at the close of plaintiff's testimony, which motion was renewed at the conclusion of all the evidence. The Court of Appeals did not err in reversing the judgment of the court of common pleas, though perhaps assigning a wrong reason for such reversal.
The judgment of the Court of Appeals will be affirmed, and the court of common pleas will be instructed to enter final judgment in favor of the plaintiff in error.
Judgment affirmed.
KINKADE, ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.