
    Beer v. Beer.
    (Decided September 19, 1935.)
    
      Mr. John E. Foster and Messrs. Henkel & Gongwer, for plaintiff in error.
    
      Mr. H. M. Bust and Mr. Lewis Brucker, for defendant in error.
   Lemert, J.

The parties herein will be referred to as they appeared in the court below. Plaintiff, Helen Beer, commenced an action against the defendant, Wilbur Beer, alleging that she and her sister entered into an arrangement with the defendant, her brother, whereby he was to furnish his automobile and take plaintiff and her sister to Columbus to see her father, who was sick in a hospital. Plaintiff and her sister were to pay the expenses of the car. On March 8,1934, while riding in defendant’s car, at about 6:40 p. m., on Lexington avenue, in the city of Mansfield, Ohio, the ear was involved in an accident and plaintiff was injured. Plaintiff prayed for damages in the sum of $25,446.35. To this prayer defendant filed his answer, in which he admitted the allegations referring to the arrangements between plaintiff and defendant, that the accident occurred on March 8, 1934, and that plaintiff sustained certain injuries. Defendant then denied that they were caused by any negligent act or omission on his part, and further denied any allegation in the petition not previously admitted. The trial resulted in a verdict for plaintiff in the sum of $2,125. Defendant filed a motion for new trial, which was overruled, and judgment was entered upon the verdict. Defendant now prosecutes error to this court to reverse and set aside that judgment.

Briefly, the record in this case shows that the father of the plaintiff and defendant was sick in a hospital' in Columbus, that arrangements were entered into between plaintiff and her sister and the defendant whereby defendant should take plaintiff and her sister to Columbus to visit their father, and plaintiff and her sister should pay the expenses.

The errors complained of are:

1. In the overruling of the motion of defendant at the close of plaintiff’s evidence and at the close of all evidence to arrest the case from the jury and direct a verdict for the defendant.

2. In the rejection of certain evidence offered by the defendant.

3. In overruling defendant’s motion to withdraw a juror and declare the cause a mistrial.

4. In the court’s charge to the jury.

As to the first alleged ground of error we will say that this motion was predicated upon the theory that plaintiff was-a guest passenger in defendant’s automobile, and that if she wished to recover she must recover under the so-called Guest Statute of Ohio as set forth in Section 6308-6, General Code, which reads 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.”

In order to recover in this sort of action it is necessary for plaintiff to plead and prove wilful or wanton misconduct on the part of defendant. There is no dispute in the record about the theory upon which this action was brought. This brings us to the all important question in this case, which is: Does the buying of gasoline and oil by a passenger in an automobile remove him from the guest statute so that he may be entitled to recover? We note that the plaintiff in error admits in his answer, and also in his brief, that the plaintiff and defendant (brother and sister) had a common object and purpose in driving to Columbus at the time the accident occurred, the arrangement being that the brother and sisters were to pay for the expenses of the trip, the father being ill in a hospital in Columbus and the children thereby having a common object or purpose.

There is no dispute between the plaintiff and defendant as to the arrangement made to visit their father at Columbus, so that we are of the opinion that under this arrangement the guest law cited and claimed by plaintiff in error is not applicable to this kind of case. The fact that a passenger pays some portion of the expenses without having a common purpose or object presents a case entirely different from the present case. We are of the opinion that a guest is one who is invited either directly or by implication to enjoy the hospitality of the driver of a car, who accepts such hospitality, and who takes a ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver of the car other than the mere pleasure of his company; or, in other words, a guest, within the meaning of a motorist’s liability, is one who accepts a driver’s hospitality and takes a ride for his pleasure or business without making any return to or conferring any benefit upon the driver. Therefore, in the present instance, it necessarily follows that the motion to direct a verdict for the defendant was properly overruled.

On the second claimed ground of error, to wit, the rejection of certain evidence offered by the defendant, we note the following in the record. He was asked this question: “What arrangement did you have with your sister relative to taking her to Columbus?” The court sustained the objection to this question. The defendant having admitted in his answer the arrangement made with plaintiff as to the trip to Columbus, how the same should be paid for, the one object to be obtained, and the fact that they were proceeding under a joint arrangement, certainly could not be expected to contradict these admissions. Plaintiff in error, having admitted that there was an arrangement to pay the expense of the trip, claimed the right to examine witnesses as to what this arrangement was. It is well settled under the laws of Ohio that a party can not admit in his pleading certain statements of the petition and then later on in the trial of the case offer evidence to contradict or explain the statements. Trepanier v. Toledo & Ohio Central Ry. Co., 102 Ohio St., 69, at p. 80, 130 N. E., 558; Peaney v. Davis, 26 Ohio App., 414, 419, 160 N. E., 486.

On the third claimed ground of error, overruling defendant’s motion to withdraw a juror and declare the cause a mistrial, we observe from the record that in the court below the plaintiff asked Wilbur Beer a certain question, to wit: ‘ ‘ Q. When did you first know a claim was being made against you? A. When I received a summons.” The court then asked the question: “Q. When was the first you had any knowledge that your sister was making any claim against you for damages? A. Mr. Dunham, the adjuster for the insurance company, came out.” There was an objection to this question. The court then said to the jury, “Members of the jury: You will disregard anything said about an insurance company. In the qualification of the jury some inquiry Was made as to whether or not they were in the insurance business; any juror who permits himself or herself to be influenced in the slightest degree as to whether or not there is insurance in this case is unfit for jury service. This is not an action between an insurance company, if there be one, and if this jury should return a verdict for an amount simply because there was an insurance company and if it should turn out that there was no insurance company, or no liability, the jury can see that might punish the defendant when he was not guilty of negligence; however, if he was guilty of negligence and his negligence was a contributing proximate cause of an accident, the plaintiff is entitled to recover, so exclude anything said with reference to insurance from your minds and listen to the evidence.” So we observe that the defendant below asked the witness a question which he no doubt answered truthfully and which he could have answered in no other way. The plaintiff below had nothing to do with the examining of this witness. It was done by the defendant, for the defendant, over the plaintiff’s objection, and by the court. There is nothing in the record showing any hostility of this witness, and we can readily see that there was no proper way to' answer this question except to tell the truth. With this state of the record confronting us we find no error therein. It might further be stated that a reviewing court has no right to draw an inference to the effect that error has intervened justifying a reversal; the record must first affirmatively show that the rights of the complaining party have been prejudiced.

On the fourth and last claimed ground of error, to wit, the court’s charge to the jury, we find from an examination of the record that under the pleading and the evidence submitted the court properly charged the law of the case and there is no error therein.

It therefore follows that the finding and judgment of the court below will be, and the same hereby is, affirmed.

Judgment affirmed,

Montgomery and Sherick, JJ., concur.  