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Burden of Pleading--Guest Statute and Last Clear Chance

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Burden of Pleading--Guest Statute and Last Clear Chance BURDEN OF PLEADING-GUEST STATUTE AND LAST CLEAR CHANCE ROBERT E. LEACH* Too often problems of pleading are thought of by the practitioner as only procedural problems or matters of form without reference to the substantive law involved. Too often a petition is but a synopsis of the story related by the client followed by the prayer. Any considera- tion as to the burden of pleading in any type of case necessarily involves and to a large extent must be governed by a determination as to the burden of proof. Questions as to the burden of proof are questions of substantive law. By the terms of Ohio Revised Code section 2309.04, the petition must contain a statement of facts constituting a cause of action in ordinary and concise language. Where liability is predicated on the violation of a legal duty, the petition should set forth the facts from which the obligation or duty is supposed to arise.' Thus the petition must aver all essential facts constituting the cause of action, varying, of course, with the nature of the case or the remedy sought. It would seem to be axiomatic that the plaintiff has the burden of proof as to those essential facts necessary to show the violation by the defendant of a legal duty owed to the plaintiff. By the terms of Ohio Revised Code section 2309.13, the answer may contain not only a general or specific denial of each material al- legation of the petition controverted by the defendant, but also a statement in ordinary and concise language of new matter constituting a defense or counterclaim. What is "new matter" constituting a de- fense? It refers to something relied on by the defendant, extrinsic to matters set up by the plaintiff in the petition, which, if true, con- stitutes a defense to the action.2 The term manifestly implies something not relating to denials, something which is not a mere traverse of the allegations of the petition.' The term "new matter" embraces matters of confession and avoidance as understood at common law.4 While a defendant may also deny the allegations of the petition by general or specific denial, he may, in addition thereto, assert in effect that, even if prima facie liability be established by proof of the essential allega- * judge, Common Pleas Court, Franklin County, Ohio. Member Ohio and Colum- bus Bar Associations. I Jurgan v. Chair Products Co., 3 Ohio L. Abs. 196 (1925); McBride v. Tyler Co., 3 Ohio L. Abs. 698 (1925). 2 Leedle v. Christie, 15 Ohio C.C.R. (ns.) 385 (1913). 3 Corrigan v. Rockefeller, 5 Ohio N.P. 338, 8 Ohio Dec. 14 (1898). 4 43 Ohio Jur. 2d "Pleadings" § 120; 41 Am. Jur. "Pleadings" § 156. OHIO STATE LAW JOURNAL [Vol. 23 tions of the petition, such prima facie liability is defeated by proof of the "new matter" alleged in the answer. By way of illustration of this principle, it is clear that while a defendant by way of evidence and argument may assert that plaintiff's injuries were caused solely by his own negligence, or that they were caused solely by the negligence of a third person, such assertions and the ultimate facts in support thereof are not "new matter" but are merely a denial of the allegations of the petition.5 The indiscriminate intermingling of new matter, general denial, and specific denial in a pleading, with no apparent attention to the order in which they are set forth, is not authorized by the Revised Code and is not approved.6 As a basic proposition, it is clear that a party never has the bur- den of pleading facts as to which he does not have the burden of proof. In certain situations an issue may arise in a case without the necessity of any pleading relative thereto. Contributory negligence 7 and assumption of risk8 are among the exceptions to the rule that defensive matter, as to which a defendant has the burden of proof, are required to be specially pleaded.' GUEST STATUTE Prior to June 15, 19332 the right of recovery by a guest from the operator of a motor vehicle was based on the common law prin- ciples of negligence and proximate cause. At that time the guest statute became law, since recodified as Revised Code section 4515.02, provid- ing: 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, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, 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. A similar statute is also in effect as to the operation of aircraft."0 G Sole negligence of plaintiff: Hanna v. Stoll, 112 Ohio St. 344, 147 N.E. 339 (1925); Duncan v. Evans, 60 Ohio App. 265, 20 N.E.2d 729 (1937). Sole negligence of third party: Montanari v. Haworth, 108 Ohio St. 8, '140 N.E. 319 (1923); Hatsio v. Red Cab Co., 77 Ohio App. 301; 67 N.E.2d 553 (1945). 6 Zetzer v. Lundgard, 95 Ohio App. 51, 117 N.E.2d 445 (1953). 7 Fries v. Cincinnati St. Ry. Co., 138 Ohio St. 537, 37 N.E.2d 193 (1941); Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 146 N.E. 805 (1925). 8 Centrello v. Basky, 164 Ohio St. 41, 128 N.E.2d 80 (1955). 9 For other exceptions see 43 Ohio Jur. 2d "Pleadings" § 138. 10 Ohio Rev. Code 4561.151 (1955). 1962] BURDEN OF PLEADING The case law in Ohio to date has been limited to considerations of the motor vehicle guest statute. Where the plaintiff pleads facts showing a status as a "guest," he must both plead and prove facts sufficient to make a jury issue as to willful or wanton misconduct. His burden both of pleading and of proof in such respect is well understood. The question of what facts are sufficient as a matter of law to constitute "willful or wanton mis- conduct" or to permit a jury to so conclude, has been and will continue to be the subject of continuous litigation." Any intelligent discussion of the substantive law in such respect, as decided by the seemingly endless reported cases on this subject, cannot be contained in a dis- cussion as to the burden of pleading except to note that a pleader should examine such substantive law before pleading, not after. Where the plaintiff admittedly occupies a status other than that of a "guest," which for the purposes of simplification I shall refer to as a "passenger,"1 he has, of course, the burden of alleging and prov- ing facts establishing negligence and proximate cause. This creates no peculiar pleading problems other than those inherent in pleading any negligence case and is relatively well understood and accepted. A pleading problem peculiar to the guest statute does arise where the plaintiff is asserting that he is a "passenger" and defendant is asserting that plaintiff is a "guest." Must plaintiff plead facts to show that he is not a "guest being transported without payment therefor" or must defendant plead facts to show that he is such a "guest"? On this question there is some divergency of legal opinion. More ac- curately stated, there is some divergency of legal opinion as to where the burden of proof lies, it being accepted that the burden of pleading properly rests on the party having the burden of proof. In Dobbs v. Sugioka,'3 the opinion stated that the guest statute deprived one within its terms of a right theretofore existing, is in derogation of the common law, should be strictly applied, and "hence one relying on the guest statute has the burden of clearly establishing that claimant was a guest." The Dobbs case has been cited as au- thority for the proposition that defendant should have the burden of pleading and proof as to the "guest" status of the plaintiff.' 4 Actually, a careful reading of the Dobbs case reveals that the facts as to the "guest" status of the plaintiff were not in dispute. The question in- volved simply a judicial interpretation of the Colorado guest statute as applied to particular facts and not a determination as to the burden 11 See 6 Ohio Jur. 2d "Automobiles" §§ 226, 227. 12 For simplification, this terminology has been used in opinion of the Ohio Su- preme Court. See Burrow v. Porterfield, 171 Ohio St. 28, 168 N.E.2d 137 (1960). 23 117 Colo. 126, 185 P.2d 784 (1947). 14 Note, 21 U. Cin. L. Rev. 66 (1952). OHIO STATE LAW JOURNAL [Vol. 23 of pleading or the burden of proof as to facts. In this respect the Dobbs case is similar to the syllabus holding of the Ohio Supreme Court in Clinger v. Leman 5 that the guest statute "being in derogation of the common law, is to be strictly, albeit reasonably, construed." In Hasbrook v. Wingate' and Ames v. Seibert,17 the Ohio Su- preme Court has held in the syllabi 8 that under the guest statute a person seeking to recover from another person for injuries suffered because of the latter's negligent operation of a car in which the injured person was "riding," has the burden of showing that he paid or agreed to pay for his transportation. The Ames holding differed from the Hasbrook holding only by the addition of the words "ex- pressly or impliedly" agreed to pay.
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