Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
In this automobile negligence action, the plaintiffs were awarded verdicts for injuries suffered and expenses incurred as the result of a highway accident. The mishap occurred in the City of Zanesville, Ohio, when the automobile in which they were riding and which was owned by the defendant Lawrence Henderson, and driven by the defendant Roberta Austin, went off the road and turned over.
Since the incident took place in Ohio, every one concedes that the law of that state controls the plaintiffs' cause of action. Clement v. Atlantic Casualty Ins. Co. , 13 N.J. 439, 442 (1953); Cohen v. Press , 31 N.J. Super. 45 (App. Div. 1954), certification denied 16 N.J. 197 (1954). The pertinent statute provided:
"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 willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle." Ohio Gen. Code , § 6308-6 (1948) (substantially reenacted by Ohio Rev. Code , § 4515.02 (1953)).
There is no claim here that the driver defendant was guilty of willful or wanton misconduct. Ordinary negligence is charged, and the right to recovery is predicated on the theory that plaintiffs were being transported for payment within the contemplation of the enactment.
In construing the act, the Ohio courts have said that when a definite and enforceable contract for the sharing of all or a portion of the expenses of the trip is made prior to the beginning of the journey, the rider is a paying passenger and not a mere guest. When such an agreement appears, the matter of adequacy or inadequacy of the payment (whether it be money or services or other means of compensation) is of no importance because the parties have made their own bargain. Birmelin v. Gist , 162 Ohio St. 98, 120 N.E. 2 d 711 (1954); Hasbrook v. Wingate , 152 Ohio St. 50, 87 N.E. 2 d 37, 10 A.L.R. 2 d 1342 (1949); Miller v. Fairley , 141 Ohio St. 327, 48 N.E. 2 d 217 (1943); Duncan v. Hutchinson , 139 Ohio St. 185, 39 N.E. 2 d 140 (1942); Dorn v. Village of North Olmstead , 133 Ohio St. 375, 14 N.E. 2 d 11, 14 (1938); Beer v. Beer , 52 Ohio App. 276, 3 N.E. 2 d 702 (Ct. App. 1935); Annotation , 10 A.L.R. 2 d 1351, 1361, 1365, 1367 (1950).
The testimony in the present case is in conflict as to the arrangement or circumstances under which plaintiffs were occupants of the car. However, it does appear that in the summer of 1952 the plaintiff Bobbie Lee Miller and the defendant Austin were planning a trip to Waycross, Georgia, to see their sister. Mrs. Miller's two children, the infant plaintiffs, were to accompany her. About that time, while riding in Henderson's car, she discussed the matter with him,
She told him she intended to go by train. He said he was thinking of visiting relatives in St. Louis and in Jackson, Mississippi, and suggested that he might be able to do so around the Christmas holidays; if she would wait until then, it would not cost her as much as the train fare. He would take her and her sister, Roberta Austin, to Georgia, provided they went with him to see his relatives in the places mentioned and provided she (Mrs. Miller) would share the driving "all the way around" and pay the gasoline bills from Philadelphia (the point of departure) to Georgia. The plaintiff Miller agreed to do this.
On December 17, 1952 Mrs. Miller and the children went to the home of her sister, the defendant, Roberta Austin, in Philadelphia. Mrs. Austin had already purchased train tickets to Georgia for herself and her sister, apparently believing that Henderson could not make the trip. However, on the evening of the arrival of the Millers, Henderson came to the Austin home and said he was ready to go. At this time the agreement already outlined was reiterated.
On the journey to Georgia Mrs. Miller gave $10 to her sister, who turned it over to Henderson when he was getting gasoline. Mrs. Austin also supplied money for the same purpose on a number of occasions. The proof showed that Mrs. Miller shared the driving three times enroute to Georgia, twice between Georgia and Mississippi; twice from Mississippi to St. Louis and had driven once after leaving the latter city before the accident.
On arrival in Waycross, Georgia, all of them, including Henderson, were guests for a week at the home of the sister. Then they left and drove to Henderson's relatives' place in Mississippi where they stayed two days. From there they went to see his relatives in St. Louis, again remaining two days. The persons visited in these last two places were unrelated to Mrs. Miller; she did not know them.
We agree with the trial court that this testimony created a jury question under the Ohio cases as to whether the plaintiffs were paying passengers or simply guests. As already ...