
    The State of Ohio, Appellee, v. Pitzenbarger, Appellant.
    [Cite as State v. Pitzenbarger, 6 Ohio Misc. 134.]
    (No. 4054
    Decided August 9, 1965.)
    
      Appeal: Mercer County Common Pleas Court.
    
      Mr. James W. Myers, city solicitor, for appellee.
    
      Messrs. Nolan, Wolff é Sprowl, for appellant.
   Dull, J.

This cause is before the court on appeal from the Celina Municipal Court, wherein the defendant was found guilty of violating Sections 4923.04 and 4923.17, Revised Code, and fined $250 and costs.

It was submitted to the court upon an agreed statement of facts and bill of exceptions and the briefs of counsel.

The defendant-appellant (hereinafter referred to as the defendant) filed the following assignment of errors:

“1. The verdict and judgment is contrary to and against the manifest weight of the evidence, and contrary to law.
“2. In effect, the court placed an improper burden upon the defendant of proving himself innocent.
“3. The court attached an improper presumption of guilt based upon the state’s evidence.
“4. Other errors appearing on the face of the record which are prejudicial to the rights of the defendant.”

The basic facts can be briefly stated. On July 17,1964, the defendant was arrested by Mr. Bruce Barber, an agent of the Public Utilities Commission of Ohio, and charged with transporting property for hire from Greenville to Celina, Ohio, without a proper permit as required by Section 4923.04, Eevised Code, and in violation of Section 4923.17, Eevised Code. Mr. Barber also discovered on that date on board the motor vehicle under the control of the defendant a shipment of merchandise for Wichita, Kansas, which was properly licensed. The defendant was operating a motor vehicle owned by Mr. Floyd Merrick and leased by him to Global Van Lines, an interstate carrier. The property being transported from Greenville to Celina, Ohio, by the defendant consisted of different articles of furniture owned by Mr. Lester Foreman.

From the agreed statement of facts and bill of exceptions and briefs of counsel, it is conceded that there was no direct evidence of any ‘‘contract for hire” between the defendant and Mr. Foreman introduced in the trial court. Neither was there any payment of money by Mr. Foreman to the defendant alleged or proven in the trial court.

The arresting officer, Mr. Barber, testified that he found no indication of a “contract for hire.”

Mr. Floyd Merrick, employer of the defendant testified that he knew nothing concerning any transactions between the defendant and Mr. Foreman.

Both the defendant and Mr. Foreman testified that there was no “contract for hire,” but that the defendant was to transport the furniture of Mr. Foreman free of charge from Green-ville to Celina, Ohio.

However, the defendant further testified that he and Mr. Foreman were social friends and that Mr. Foreman had performed certain favors for him in the past, and, because of these past favors, he (the defendant) decided to transport the furniture of Mr. Foreman free of charge. The testimony of Mr. Foreman confirmed the testimony of the defendant: Mr. Foreman testified that when he mentioned to the defendant that he was moving, the defendant offered to move him free of charge because of their friendly relationship and the favors that had been done by Mr. Foreman for the defendant in the past.

The defendant further testified that on three previous occasions he had moved the furniture of Mr. Foreman, for which he had been paid. The testimony of Mr. Foreman confirmed this. Mr. Foreman further testified that he had obtained estimates of the cost of moving his furniture from Greenville to Celina, Ohio, from two other moving firms. In the light of such testimony, it would seem that Mr. Foreman was aware that it was customary to make a charge for moving furniture from one place to another in Ohio.

Section 4923.04, Revised Code, provides: “No private motor carrier shall operate any motor vehicle for the transportation of persons or property, or both, for hire, on any public highway in this state except in accordance with Chapters 4901., 4903., 4905., 4907., 4909., 4921., 4923., and 4925. of the Revised Code. No such private motor carrier shall continue or commence its operation as such in this state without obtaining a permit from the public utilities commission as provided in Sections 4923.05 to 4923.07, inclusive, of the Revised Code.”

The words “contract for hire” do not appear in this statute. But from the very nature of the conduct of human affairs, there must have been some contract, agreement, arrangement or, at least, some understanding between the defendant and Mr. Foreman before the latter’s furniture was placed on board the motor vehicle under the defendant’s control at Greenville, Ohio. Apparently it was placed on board the motor vehicle by the defendant, with Mr. Foreman’s consent, after the defendant offered to move it for Mr. Foreman. All of which builds up to a rather clear inference of an acceptance by Mr. Foreman of the defendant’s offer to move his (Mr. Foreman’s) furniture. The only clues of record, however, to such a contract, agreement, arrangement or understanding as being one “for hire” was the testimony of the defendant that Mr.' Foreman had performed certain favors for him in the past, and because of these past favors, he (the defendant) decided to transport the furniture of Mr. Foreman free of charge and the confirming testimony of Mr. Foreman to the effect that the defendant offered to move him free of charge because of their friendly relationship and the favors that had been done by Mr. Foreman for the defendant in the past. There was no testimony as to what these past favors of Mr. Foreman for the defendant were or their worth.

However, the key words in Section 4923.04, Revised Code, are “for hire.” In the context of the statute, the word “hire” is used as a noun — the object of the preposition “for.”

“Hire” As a Noun

“The word ‘hire,’ is associated with the act of employment rather than the reward for services done, and in the latter connection is more on the plane of wages than of salary, although in a sense it comprehends both, and is also applied to engaging the use of property.” Words and Phrases, Volume 19, page 487.

It “ is not inconsistent with the idea of a covenant or agreement for freighting accommodations aboard ship.” Corpus Juris Secundum, Volume 40, pages 401 and 402.

To quote from Webster’s Third New International Dictionary (1963): “2a (1): the act of hiring (2): an instance of such act. b: the state of being hired.”

Hence, by giving a strictly grammatical construction to Section 4923.04, Revised Code, and at the further risk of being accused of unduly semanticizing, there was no need to allege or prove that Mr. Foreman paid any money or parted with anything, whatsoever, to the defendant for transporting his fundture from Greenville to Celina, Ohio, or that the defendant received anything whatsoever from Mr. Foreman. Certainly Mr. Foreman performed some act of employment or “hiring” of the defendant and the motor vehicle under his control or in some manner engaged the use of the defendant and his motor vehicle.

Hence, construing Section 4923.04, Revised Code, in such a manner, the defendant was guilty of violating the provisions of Sections 4923.04 and 4923.17, Revised Code.

“Hire” As a Verb

However, as used in its traditional or ordinary way in the course of business and everyday life, the word “hire” connotes payment, reward, compensation or consideration of some kind.

“The word ‘hiring’ implies a request and a contract for a compensation, and has but this one meaning when used in the ordinary affairs and business of life.” "Words and phrases, Volume 19, page 485.

“The primary meaning of the verb ‘to hire’ is to procure the temporary use of an article for compensation, its secondary meaning is to grant such use.” Words and Phrases, Volume 19, page 485.

“Applied to persons, the verb means to engage a man to temporary service for wages, or to engage in service for a stipulated reward; and sometimes, although perhaps less accurately, it is applied to the securing of professional services, as where one is said to hire a lawyer, a doctor, or a person of that class. It is also properly applied to engaging the use of property; and has then been defined as meaning to lend property, other than money, for a compensation; to procure the temporary use of an article for compensation; and, in its secondary meaning, to grant the temporary use of an article for compensation.” Corpus Juris Secundum, Volume 40, page 402.

Did the defendant receive any payment, reward or compensation of some kind from Mr. Foreman for his services and the use of the motor vehicle under his control as the result of some contract, agreement, arrangement or understanding between him and Mr. Foreman for the transporting of the latter’s furniture from Greenville to Celina, Ohio, or was there a consideration for the same ?

The word “compensation” varies in its meaning depending on the words and the subject matter in connection with which it is used; and it has been said that, as sometimes used, it is a somewhat misleading term, and is made use of only because there is no other word more nearly expressing the thought of the law which permits recovery for an imponderable and intangible thing for which there is no equivalent in terms of money. The term “compensation” in law applies primarily to a transaction between two or more persons and does not enter into, or arise from, a unilateral transaction, purpose, or policy of one person alone in the prosecution of his individual enterprise or undertaking; and as commonly understood, it carries with it the idea of making whole, or giving an equivalent or substitute of equal value. It is not limited to the actual handing over of a definite material payment, but imports a recompense or equivalent to one party and has no relation to any advantage to the other. “Compensation” has been held not to imply necessarily an immediate payment, an immediate or direct return, a transfer, a bestowal, or a parting with some thing, nor, in particular connections, insurance nor the payment of a cash fare or its equivalent. In the sense of the thing given, it has various significations, depending on the context and circumstances of its use, and has been defined in general as meaning a consideration; the consideration or price of a privilege purchased; an equivalent, recompense, or remuneration; pay; payment for value in money; a recompense or reward for some loss, injury, or service, especially when it is given by statute; that return which is given for something else. Under particular circumstance, “compensation” has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payment for services, restitution or a balancing of accounts.” Corpus Juris Secundum, Volume 15, pages 652, 653 and 651. (Emphasis by the court.)

“The word ‘compensation’ connotes equivalency, that is to say, a payment which adequately remunerates, makes amends for a wrong done, or pays for a service rendered.” Words and Phrases, Volume 8, page 287. (Emphasis by the court.)

Consideration is often used as a synonym for compensation.

“ ‘Consideration’ is any benefit to the promisor or detriment to the promisee.” Words and Phrases, Volume 8a, page 253.

“ ‘Consideration’ consists of either a benefit to the promisor or a detriment to the promisee, and it is not necessary that both benefit and detriment exist.” Words and Phrases, Volume 8a, page 253. (Emphasis by the court.)

To return again to the testimony of the defendant wherein he testified that Mr. Foreman had performed certain favors for him in the past; and because of these past favors, he (the defendant) decided to transport the furniture of Mr. Foreman free of charge, and the confirming testimony of Mr. Foreman to the effect that the defendant offered to move him free of charge because of their friendly relationship and the favors that had been done by Mr. Foreman for the defendant in the past, the court finds there was sufficient compensation or consideration for the contract, agreement, arrangement or understanding between the defendant and Mr. Foreman for the transporting of the latter’s furniture from Greenville to Celina, Ohio. The compensation or consideration received by the defendant was the discharge of his obligations to Mr. Foreman for past favors rendered to him by Mr. Foreman. Or, to put it in other ways: thereby the defendant paid for the past services rendered to him by Mr. Foreman, or thereby the defendant was made whole again by being freed of any further obligations to Mr. Foreman, or thereby the “accounts” of the defendant and Mr. Foreman were balanced and thereby the defendant was benefited (as well as Mr. Foreman).

Consequently, the court finds that the defendant in transporting the furniture of Mr. Foreman from Greenville, to Celina, Ohio, was operating his motor vehicle “for hire” without the proper permit from the Public Utilities Commission of Ohio as required by Section 4923.04, Revised Code, and in violation of Section 4923.17, Revised Code.

Judgment affirmed.  