Fullerton v. White

Citation75 Or.Adv.Sh. 4029,542 P.2d 1017,273 Or. 649
PartiesDonna Jean FULLERTON, Appellant, v. Geraldine WHITE, Respondent.
Decision Date28 November 1975
CourtSupreme Court of Oregon

Dennis A. Hachler, Pendleton, argued the cause and filed the brief for appellant.

John H. Kottkamp, Kottkamp & O'Rourke, Pendleton, argued the cause and filed the brief for respondent.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

This is an action for personal injuries sustained by plaintiff while riding as a passenger in defendant's automobile. The case was tried before a jury. Plaintiff appeals from an adverse judgment. We affirm.

Plaintiff contends that the trial court erred in refusing to hold as a matter of law that plaintiff was not a 'guest without payment' within the meaning of ORS 30.115 and in submitting that question to the jury.

Because payment for gasoline was provided for a trip not previously planned by defendant, but undertaken by her at plaintiff's request, this case presents questions never before directly decided by this court.

The facts.

On the night of July 23, 1973, plaintiff, then 19 years of age, was staying in an apartment in Portland with friends. Plaintiff, who had previously resided in Pendleton, became frightened when one of her roommates was 'freaking out' after taking drugs. She then called a friend in Pendleton, Arleigh Smith, and asked him to come and get her that night.

Mr. Smith said that he could not do so, but that he would try to get someone else to make the trip. He then left the telephone, went upstairs, and asked defendant if she would do so. There is some conflict in the testimony relating to his conversation with her.

According to Mr. Smith, when he first asked defendant to go to Portland to get plaintiff 'she agreed to do so, without mentioning any money' and he then told her that if she didn't have any money he would give her $10 and that plaintiff would pay him back later. At some point in that conversation defendant said that she didn't have any money. Mr. Smith first testified that she made that statement after saying that she would go and before he said that he would pay her $10 on behalf of plaintiff. On cross-examination Smith testified that after defendant said that she would go Smith asked her if she would need any money. He also testified that he had only that one conversation with defendant; that he did not say 'Here is $10 if you will go' and she did not make the $10 a 'condition,' but would not have been able to go otherwise because she needed money for gasoline to make the trip; that he then told plaintiff that the defendant would drive to Portland to get her and that he was 'loaning' $10 to defendant which plaintiff would have to repay to him; that after this conversation with plaintiff he went back upstairs; that defendant was not there at that time and that he gave the $10 to another friend who was going to go with defendant on the trip.

The testimony of defendant relating to this conversation is also not entirely clear. At one point she testified that when Mr. Smith asked her if she would go 'I said I would' and that he then went back to the telephone, apparently to tell plaintiff that defendant would drive to Portland to get her, and only then came back and said that he would give defendant money for gasoline. At another point she testified that on the first occasion when Smith came upstairs and asked her to go 'I said I would and I guess we would more or less take care of it afterwards' and that 'I told him I didn't have very much gas in the car and that was all that was said' until after Smith went back to the telephone and then came back later and offered to pay her $10 for gasoline.

Defendant also testified that although she didn't have any money with her at that time and could not have made the trip without $10 and had less than one quarter tank of gasoline, her 'motive' and 'sole reason for making the trip' was that plaintiff 'needed a way home and I was the only one there with a car'; that she had not previously met plaintiff and did not make the trip 'for the satisfaction of having some kind of social relationship with plaintiff,' but that Mr. Smith had 'done her favors'; she was 'doing him a favor' and that '(t) urn abouts are fair play.'

Another witness to the conversation between Smith and defendant, Bruce Knights, testified that when Mr. Smith first asked defendant if she would go '(s)he said she would, but she didn't have any gas money' and that Smith later gave $10 to Mr. Knights and 'said it was for gas.' On cross-examination, however, Mr. Knights said that it was he who asked Smith for the $10 for gasoline and that defendant had previously agreed to go without insisting on payment of any kind.

Plaintiff, of course, was not a witness to the conversation between Smith and defendant, but testified that when Mr. Smith came back to the telephone to say that defendant (whom she did not know) would make the trip 'he talked about money' and said that there would be a sum of money which she would have to pay hom back, without saying how much and that she agreed to do so. On cross-examination, however, plaintiff testified that in the course of the telephone conversation Smith asked her to repay him the $10 that he had given to the 'other people,' presumably for gasoline. Plaintiff also testified that she then had some money in the bank and later did repay the $10 to Smith.

After these conversations between Smith and defendant and between Smith and plaintiff, the defendant and the other friends bought gasoline with part of the $10; drove to Portland to pick up plaintiff; bought more gasoline with the balance of the $10; and on the return trip to Pendleton that same night had the accident in which plaintiff was injured.

Decisions by other courts.

This court has previously considered cases involving pre-arrangements for the sharing of expenses for trips by automobile in which the drivers invited the passengers to accompany them on trips previously planned by the drivers. 1 We have also considered cases involving pre-arrangements for trips which were planned by both driver and passenger for the joint benefit of both. 2 This is the first case, however, in which this court has been called upon to consider the legal effect of a pre-arrangement for contribution by a passenger to the expense of a trip undertaken solely at the request and for the accommodation of the passenger. 3

Other courts which have considered such cases, under other statutes and other facts, have held either that such a passenger is a 'guest without payment for transportation' as a matter of law, at least when the contribution by him to the expense of the trip is a small portion of the actual cost of the operation of an automobile for such a trip, 4 or that the question whether such a passenger is a 'guest' is a question of fact to be submitted to a jury for decision. 5 No decisions by other courts have been called to our attention in which it has been held under similar facts that such a passenger is not a 'guest' as a matter of law, as contended by the plaintiff in this case.

Although these decisions by other courts are of interest to us, the provisions of the Oregon 'guest statute,' ORS 30.115, are somewhat different than the provisions of guest statutes in many other states and we are also controlled by the principles of law established by previous decisions of this court for general application in 'guest-passenger' cases.

Provisions of the Oregon guest statute.

For some years prior to 1961 the Oregon 'guest statute' provided that:

'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others.' 6

Under that statute, and in cases involving different facts, this court held that 'any bona fide pre-arrangement for sharing expenses will take the occupant out of the guest category,' and rejected as 'confusing and too difficult to apply' the rule adopted in earlier cases to the effect that in considering whether such a passenger was a 'guest without payment for such transportation' this court should consider whether such a payment was not only a 'substantial benefit,' but was a 'substantial motivating factor for the transportation.' 7

In 1961 the Oregon legislature, in effect, overruled those decisions of this court by the enactment of ORS 30.115, 8 in which the term 'payment' is defined as follows:

'(1) 'Payment' means a substantial benefit in a material or business sense conferred upon the owner or operator of the conveyance and which is a substantial motivating factor for the transportation, and it does not include a mere gratuity or social amenity.'

Since 1961 this court, in accord with the requirements of ORS 30.115(1) has held that 'payment,' for the purposes of that statute, must involve a 'substantial benefit in a material or business sense conferred upon the owner or operator' and must be 'a substantial motivating factor' for the transportation. 9 As previously noted, however, this is the first time that this court has had the occasion to consider the application of this rule in a case involving a contribution to the expenses of a trip by automobile undertaken solely at the request and for the accommodation of a passenger.

Established rules of general application.

In considering the application of the Oregon guest statute to this type of case, it is well to begin by bearing in mind some of the principles previously established by this court for general application in all cases arising under this statute.

First, we have held that the Oregon guest ...

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2 cases
  • Kruse v. Fitzpatrick
    • United States
    • Supreme Court of Oregon
    • 3 Mayo 1977
    ...statute comes into play 'at the point when the host begins performance of the gratuitous undertaking.' Recently, in Fullerton v. White, 273 Or. 649, 542 P.2d 1017 (1975), we '* * * (T)he Oregon guest statute, being in derogation of the common law, is to be strictly construed and that the co......
  • Naber v. Thompson
    • United States
    • Supreme Court of Oregon
    • 26 Febrero 1976
    ...guest statute since it deprives a person of his right to recover against one whose negligence caused him injury. Fullerton v. White, 75 Or.Adv.Sh. 4029, 4035, 542 P.2d 1017. The husband's right to recover for loss of consortium is also a common law right. Elling v. Blake-McFall Co., 85 Or. ......

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