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MILKOVICH v. BUNE (05/26/52)

May 26, 1952

MILKOVICH
v.
BUNE, APPELLANT



Appeal, No. 82, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, April T., 1948, No. 1128, in case of Daniel Milkovich v. Gertrude S. Bune, Admrx., et al. Judgment affirmed; reargument refused June 24, 1952.

COUNSEL

George Y. Meyer, with him George I. Buckler, for appellant.

John E. Evans, Jr., with him Evans, Ivory & Evans, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 17]

OPINION BY MR. JUSTICE JONES

George Bune, the defendant's decedent, solicited the loan of an automobile in Pittsburgh from Edward Milkovich for the purpose of transporting a friend to the latter's home in Cleveland, Ohio. Milkovich stipulated that Bune take along Daniel Milkovich, Edward's brother, so that Daniel could attend to some business in Cleveland for the Milkoviches' father. Bune assented and the trip was undertaken in the borrowed automobile with Bune doing the driving. Daniel Milkovich did not have a driver's license at the time. While Bune and Daniel were returning from Cleveland, their car collided with a tractor-trailer truck in Ohio and, as a result, Bune was killed and Daniel seriously injured. Daniel sued the administratrix of Bune's estate for damages for his injury, joining as a party defendant Zeno Brothers Trucking Company, Inc., the owner of the tractor-trailer. The jury returned a verdict for the plaintiff against the estate of George Bune and, by direction of the court, a verdict for Zeno Brothers Trucking Company, Inc. The court overruled the administratrix's motion for judgment n.o.v. and entered judgment on the verdict against her from which the administratrix has appealed.

[ 371 Pa. Page ]

The principal question raised by the appellant is whether, under the evidence, the plaintiff was a nonpaying guest in the car driven by Bune and, consequently, barred from a right of action against Bune's estate under the law of Ohio which governs the substantive rights of the parties: see Rodney v. Staman, 371 Pa. 1, 89 A.2d 313. The pertinent law of Ohio is that State's Guest Statute (4A, Page, Ohio General Code Annotated, Section 6308-6) which provides in part presently material as follows: "The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage

[ 371 Pa. Page 18]

    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."

It is plain from the already recited facts favorable to the verdict that the evidence warranted a finding by the jury that the decedent Bune would not have had the use of Edward Milkovich's car to transport his friend to Cleveland had he not agreed to take Daniel Milkovich with him. The defendant administratrix, herself, had the trial judge submit to the jury the following special interrogatory, -- "Was the decedent, George Bune, transporting the plaintiff, Daniel Milkovich, to and from Cleveland for any payment, consideration or special benefit to George Bune?" The jury answered the question in the affirmative and returned a general verdict for the plaintiff. The evidence fully justifies the answer. It would seem, therefore, that the only ground open to the appellant in support of her contention of no liability is that, despite the fact that her decedent received "payment, consideration or special benefit" for carrying Daniel Milkovich, it was not such "payment" as the Ohio Guest Statute contemplates. Accordingly, it becomes necessary (see Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870) to examine the interpretation placed by the courts of Ohio upon the term "payment" in the Statute.

As the Statute is in derogation of the common law, it is to be construed so as to confine its application strictly: Dorn v. Village of North Olmsted, 133 Ohio St. 375, 381, 14 N.E. 2d 11. In applying the Ohio Statute in O'Hagan v. Byron, 153 Pa. Superior Ct. ...


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