Hyer v. Velinoff

Whiteside, J. This is an appeal upon questions of law from a judgment of the Franklin County Municipal Court. *212 This action involves the application of the airplane guest statute. At trial, the court directed a verdict in favor of defendants, appellees herein, upon the ground that plaintiff John F. Hyer, appellant herein, was a guest as a matter of law, but submitted the case to the jury upon the issue of willful and wanton misconduct. The jury returned a verdict for defendants upon that issue. The plaintiffs have assigned two assignments of error, as follows: “1. The trial court erred by directing, at the close of the plaintiffs’ case, that John F. Hyer was a ‘guest’ in the airplane owned and operated by defendants. “2. The trial court erred in not allowing testimony .as to the relationship between the Multicon entities and the financial dependence by Mar-Vel upon such entities.” Plaintiff Hyer, an architect, was the regional manager of planning and design for plaintiff-appellant Multicon, an Ohio limited partnership, having its principal place of business in Columbus, Ohio. His duties included those of architectural survey of sites, determining architectural feasibility to develop the type of garden apartment communities built by the partnership, site planning for those communities, architectural design of the various buildings, and supervision of construction on the sites. The actual construction was performed by a related corporation, Mul-ticon Construction Corporation, as general contractor. Plaintiff Hyer represented the owner in dealing with the general contractor which, in turn, contracted and dealt with various subcontractors. Defendant Mar-Vel Sheet Metal Corporation was a subcontractor on some of these projects, including one called Georgetown of Lindhurst. Defendant John R. Velinoff was vice-president of that corporation. On March 11, 1969, plaintiff Hyer planned a trip to Cleveland, Ohio, for two purposes: First, to attend a meeting in connection with a project called Georgetown of the Highlands Phase II, and second, to review construction progress at Georgetown of Lindhurst. a project of some 200 plus units, which was about 40 per cent completed. He *213 was to be accompanied on this trip by Jim Sherwood, construction manager for the Cleveland area for Mnlticon Construction Corporation. Plaintiff Hyer planned to fly to Cleveland by commerical airline. While in the process of cheeking in for this flight, he was approached by Sherwood and accompanied him to an automobile parked outside the main airport terminal, in which automobile defendant Join Velinoff and his father, Clarence Yelinoff, president oí defendant Mar-Vel, were seated. Plaintiff Hyer was informed that the Mar-Vel people were flying to Cleveland in their own aircraft, and consented to ride with them. Defendant Velinoff had earlier picked up Sherwood at his residence and they had driven to the airport together. Plaintiff Hyer, Sherwood, and defendant Velinoff then proceeded to fly to the Cleveland area in a small, single-engine airplane owned by the defendant Mar-Vel. The purpose of the trip on the part of defendant Velinoff was to turn in a construction draw for the Georgetown of Lindhurst project on behalf of defendant Mar-Vel. Defendant Velinoff piloted the aircraft. At or about Richfield, Ohio, the aircraft encountered bad weather conditions, and crash-landed in a field, as a result of which plaintiff Hyer sustained personal injuries and property damage, and the plaintiff Multicon lost some personal property. The first assignment of error raises the issue of whether plaintiff Hyer’s status can be determined as a matter of law to be that of a guest within the meaning of R. C. 4561.151, or whether that issue is one of fact. R. C. 4561.-151 reads, as follows: “The owner, operator, or person responsible for the operation of an aircraft shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said aircraft, while such guest is being transported without payment therefor in or upon said aircraft, unless such injuries or death are caused by the willful or wanton misconduct of such owner, operator, or person responsible for the operation of said aircraft. ’ ’ *214 Such statute grants the owner or operator of an aircraft immunity from liability for injuries to a guest transported without payment for the transportation, unless such injuries are caused by willful or wanton misconduct on the part of such owner or operator. At the outset, it must be noted that the guest statute does not grant immunity from liability to everyone who may be riding in an aircraft, but only as to such riders who are “guests.” Even with respect to “guests,” the immuniity is afforded only if there is no payment for the transportation. This distinction is important because there has, on occasion, been an assumption that a rider is per se a “guest” unless he has paid for the transportation, in which case he is not a “guest.” However, a careful examination of the statute clearly indicates that there may be riders who are not guests and there may be guests as to whom no immunity from liability is provided because the guest has paid for the transportation. Had the General Assembly intended that the guest statute apply to all riders, i. e., all passengers, being transported without payment therefor, we must assume that the General Assembly would have utilized the term “rider” or “passenger,” rather than the term “guest” in the guest statute. We therefore conclude that there may be riders, or passengers, who are not guests because of the circumstances under which the transportation is provided, even though no “payment” is made for the transportation. Since E. 0. 4561.151, the aircraft guest statute, is essentially identical in language to E. C. 4515.02, the motor vehicle guest statute cases construing the lattei are in point. In Burrow v. Porterfield (1960), 171 Ohio St. 28, the Supreme Court, at pages 35-37, attempted to enumerate the circumstances under which a rider is and is not a guest, as follows: “Our decisions indicate that a rider is a guest within the purview of Section 4515.02, Eevised Code, where one of the following relationships exists: *215 “(1) Where the transportation is furnished solely for the business or material interest or pleasure of the rider, or where the transportation is furnished solely as an act of social courtesy by the driver. Dorn v. Village of North Olmsted, supra (133 Ohio St. 375), paragraph four of the syllabus; Hasbrook v. Wingate, supra (152 Ohio St. 50), paragraph three of the syllabus; O’Rourke, Admx., v. Gunsley, 154 Ohio St. 375, 96 N. E. (2d), 1, paragraph two of the syllabus. “ (2) Where the transportation is furnished solely for the social and pleasure purposes of both the rider and driver. Duncan v. Hutchinson, supra (139 Ohio St. 185). “(3) Where the rider pays expense money or gives other valuable consideration to the driver as an act of social courtesy and not as payment for transportation. Duncan v. Hutchinson, supra (139 Ohio St. 185), at page 191. “(4) Where expense money is paid or other valuable consideration is given by the rider as a result of an implied agreement to pay for transportation, and such money or other consideration is not substantially commensurate with the cost of such transportation to the driver. Hasbrook v. Wingate, supra (152 Ohio St. 50), paragraph two of the syllabus. ‘ ‘ On the other hand, our decisions indicate that a rider is a passenger and not a guest within the purview of Section 4515.02, Revised Code, where one of the following relationships between driver and rider exists: “(1) Where the transportation is furnished for the sole business or material interests of the driver. Dorn v. Village of North Olmsted, supra (133 Ohio St. 375), paragraph one of the syllabus; Birmelin v. Gist, supra (162 Ohio St. 98), paragraph one of the syllabus; O’Rourke v. Gunsley, supra (154 Ohio St. 375), paragraph two of the syllabus. “(2) Where the transportation is furnished for the mutual business or material interests of both the rider and driver. Hasbrook v. Wingate, supra (152 Ohio St. 50), paragraph three of the syllabus; Duncan v. Hutchinson, supra (139 Ohio St. 185), at page 189, *216 “(3) Where expense money is paid or other valuable consideration is given by the rider as a result of an implied agreement to pay for transportation, and such money or other consideration is substantially commensurate with the cost of such transportation to the driver. Hasbrook v. Wingate, supra (152 Ohio St. 50), paragraph two of the syllabus; Miller v. Fairley, supra (141 Ohio St. 327), at page 338. ‘ ‘ (4) Where the driver insists upon his rider paying expense money or giving other property as consideration for transportation, an express contract for transportation exists in the nature of a business arrangement, and such rider is a passenger notwithstanding his payment for transportation may be inadequate or that the purpose of the transportation may have a social aspect. Hasbrook v. Wingate, supra (152 Ohio St. 50), at page 58; Miller v. Fairley, supra (141 Ohio St. 327), at pages 337 and 338. “In conclusion, the principles announced by this court make it clear that the driver or owner of a motor vehicle may waive the protection of the guest stntuie either by accepting a material or business benefit from his rider, or by accepting expense money or other property, as payment for furnishing such rider transportation.” As to the first and second category of “passenger,” the rider is not a guest because of the circumstances under which the transportation is furnished, whereas as to the third and fourth category of “passenger” the rider may be a guest, but there is no immunity from liability because the guest is not being transported “without payment therefor. ’ ’ Unfortunately, plaintiff Hyer did not clearly fall in any of the categories of “guest” or “passenger” outlined by the Supreme Court, above. However, in Dorn v. North Olmsted (1938), 133 Ohio St. 375, the term “guest” is defined as follows in the fourth paragraph of the syllabus: “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 *217 for Ms own pleasure or on Ms 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. ’ ’ There is no indication whatsoever that there was any prior acquaintance or social or direct business relationship between plaintiff Hyer and defendants. Plaintiff Hyer was on a business trip, in part to review construction progress on a project on which defendant Mar-Vel Sheet Metal was a subcontractor. Defendant Velinoff was on a business trip on behalf of Mar-Vel to turn in a construction draw for a progress payment for work performed on the same project. There is no indication in the record as to whether the construction draw was subject to review by plaintiff Hyer prior to payment. Accompanying them on the trip was Sherwood, construction manager for Multicon Construction Corporation. By prearrangement (not explained), Sherwood was to accompany defendant Velinoff on the flight. Plaintiff Hyer was to meet with Sherwood in Cleveland. Part of the difficulty in this case is the fact that Sherwood did not testify and there was little direct evidence as to what transpired between either party and Sherwood. This resulted in part from the trial court’s exclusion of testimony concerning statements made by Sherwood, even though such statements were pertinent for the fact that they were made and were not offered to pro\e the truth of any matter asserted, and thus were not hearsay. However, plaintiffs did not proffer testimony and have made no assignment of error herein in connection therewith. Defendant Velinoff testified that although plaintiff Hyer was included on the flight, he, Velinoff, did not invite him. Eather, the evidence indicates that plaintiff Hyer was included on the flight at the invitation of Sherwood. It might, therefore, be inferred that defendant Velinoff felt he had no choice but to include Hyer on the flight if Sherwood desired Hyer to accompany them. The only connection between defendants and Sherwood, in evidence, was that defendants were a subcontractor for Multicon Con *218 struction Corporation, of which Sherwood was construction manager. The evidence indicates that the only relationship existing between plaintiff Hyer and defendants was a business relationship and that, in connection with the flight in question, they were brought together by their respective business relationships with Sherwood. The evidence permitted a factual finding that defendants furnished the transportation to plaintiff Hyer as a matter of a business accommodation to Sherwood and Multieon Construction Corporation, rather than a social accommodation to Hyer. Where transportation is furnished solely as a business accomodation, rather than a social accommodat ion, the person furnished such transportation is not a guest within the meaning of the guest statute. Stated in other words, a person furnished transportation is a guest when such transportation is furnished as a social accomodation, but is not a guest where such transportation is furnished as a business accommodation. Transportation is furnished as a business accomodation where it is furnished with the expectation of receiving a business benefit in return for providing such transportation. Here, it cannot be concluded as a matter of law that defendant furnished the transportation motivated solely by generosity toward plaintiff Hyer. Motivation, like intent, being subjective, is usually for the trier of facts, to be determined from all the surrounding circumstances. Where transportation is gratuitously provided to another, motivated solely by a desire to perform a benefit upon the person being provided the transportation, such person is a guest even though the parties may be only business acquaintances. Where, on the other hand, transportation is gratuitously provided to a business acquaintance, motivated by an expectation of obtaining a business benefit, either from the person being provided the transportation, his employer, or some third person, the person provided such transportation is not a guest within the meaning of the guest statute. If the evidence herein is construed most favorably *219 for plaintiffs, reasonable minds could reach different conclusions as to whether plaintiff Hyer was a guest. Therefore, the trial court should have submitted that issue to the jury, and erred in directing a verdict for defendants thereon. In regard to the second assignment of error, plaintiffs refer to two questions to which the court sustained objections. The first pertained to the relationship between the company plaintiff Hyer worked for, and Multicon Construction Company. The sustaining of the objection to that question is not prejudicial in view of the fact that the relationship was already in evidence by prior testimony. The testimony would have been cumulative, at most. The second question was directed to defendant Vel-inoff on cross-examination and asked him to “state what percentage you believe Mar-Vel’s total output was to Mul-ticon Construction Corporation and their gross dollar.” The question was somewhat ambiguous. Plaintiffs now contend that the purpose of the question was to show that Mar-Vel Corporation was financially dependent upon its present and future business with Multi-con Construction Corporation. Plaintiffs did not otherwise attempt to pursue this issue by other questioning. Furthermore, at trial, this purpose was not advanced in support of the question; rather, it was stated by counsel that they wanted to show “that the company is making a lot of money from the corporation.” In the context in which the question was asked, we find that the sustaining of the objection was not prejudicial error. Accordingly, plaintiffs’ second assignment of error is not well taken. For the foregoing reasons, the judgment of the Franklin County Municipal Court is reversed, and the cause is remanded to that court for a new trial. Judgment reversed. StR.atjsbaugh, J., concurs.