Getchell v. Reilly

Citation81 Adv.Sh. 753,242 Or. 263,409 P.2d 327
PartiesDonald GETCHELL, Appellant, v. LeRoy REILLY, Respondent.
Decision Date22 December 1965
CourtSupreme Court of Oregon

Burl L. Green, Portland, argued the cause for appellant. With him on the briefs were Green, Richardson, Green & Griswold, Portland.

George Hibbard, Oregon City, argued the cause for respondent. On the brief were Paul D. Schultz, and Hibbard, Jacobs, Caldwell & Kincart, Oregon City.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.

GOODWIN, Justice.

Plaintiff, contending that he was not a guest passenger, 1 appeals a judgment for the defendant following an involuntary nonsuit.

On the night of March 2, 1963, plaintiff, defendant, and several other persons were together in a tavern near Newberg, Oregon. Plaintiff and defendant were close friends. All the persons in the group except plaintiff decided to go smelt fishing the following day. One Robert Renie agreed to let defendant use his smelt nets. Defendant asked Renie to go with him to get the nets, but Renie refused, saying that he was going to the beach. Renie suggested that defendant ask plaintiff, who knew where the nets were located, to accompany him. Defendant asked plaintiff to go with him to help locate the nets. The request was made several times before plaintiff consented. The only reason plaintiff consented to go was to help defendant. Plaintiff testified that he did not plan to go smelt fishing with defendant the following morning.

On the way to get the fishing gear, defendant lost control of his automobile and plaintiff received the injuries complained of in this action.

The question is whether, upon the foregoing facts, plaintiff was, as a matter of law, a 'guest without payment' under ORS 30.115. If there was a jury question on this issue, the nonsuit was error.

It is conceded that the defendant driver received no payment under ORS 30.115(1) for whatever transportation may have been involved in the transaction. It is argued that this fact, alone, constituted the plaintiff a guest.

A passenger who has not paid for transportation may be present in the vehicle for business or other nonsocial reasons. Such a person is not necessarily a guest. Spring v. Liles, 236 Or. 140, 387 P.2d 578 (1963); Smith v. Pacific Truck Express, 164 Or. 318, 100 P.2d 474 (1940).

The Restatement 2d, Torts, § 490, Comment a, defines a guest in a vehicle as one whom the owner or possessor of the vehicle invites to ride with him as a gratuity. Cases defining a guest under typical guest statutes may be found collected in the Annotation, 10 A.L.R.2d 1352 (1950).

In Spring v. Liles, supra, we defined the host- guest relationship as one having two characteristics: There must be no substantial benefit to the defendant (other than social), and transportation must be furnished by the host as a gesture of hospitality. 236 Or. at 148, 387 P.2d 578.

As noted in 2 Harper and James, The Law of Torts 958 (1956), all agree that the occupant is a guest where he obtains the benefits of the ride and his presence confers none upon the host except the satisfactions of hospitality and social relationships. On the other hand, "Guest' should be defined so as to include only those who ride gratuitously in every substantial sense. It should exclude those who ride with the host for a common purpose (other than pleasure), or primarily as a favor to the host (though not in the way of business) * * *.' [Footnotes omitted] Harper and James, The Law of Torts 961 (1956).

Any discussion in this state of the problem of the relationship where the occupant undertakes the ride at the driver's request and as a favor to him, in a nonbusiness context, should begin with Albrecht v. Safeway Stores, Inc., 159 Or. 331, 80 P.2d 62 (1938). In the Albrecht case, the plaintiff's brother-in-law asked the plaintiff to accompany him from Baker to Burns on a business trip in which the plaintiff had no interest. The plaintiff at first declined the request. The plaintiff was asked by his sister and by her husband to go along to help with the driving and to help keep the defendant brother-in-law awake. The plaintiff finally consented. We held that the plaintiff was not a guest.

We followed the Albrecht decision in Sheehan v. Apling, 227 Or. 594, 363 P.2d 575 (1961), when the passenger's presence in the vehicle was similarly motivated by a desire to accommodate the driver. Sheehan was donating his time and muscle to help Apling load and unload furniture. (While it was immaterial on the guest issue, Sheehan was also donating the use of his truck.) There we held in effect that because the plaintiff's presence in the truck was wholly for the benefit of the driver, the plaintiff was not a guest.

Where the fact admit of only one possible interpretation, as in Spring v. Liles, supra, there is no jury question. But where, as here, the evaluation of the facts leaves the issue in doubt, the jury should decide whether a given plaintiff was a guest. 2 Harper and James, The Law of Torts 961 (1956).

In the case as bar, the jury could have found that the plaintiff had gone 'out of his way' to accommodate the defendant and was not a guest. While there was no direct evidence that any purpose of the plaintiff was being served, the jury likewise could have drawn an inference that plaintiff was continuing a social activity with his companion, and was a guest.

The language of Ashland v. Pacific Power & Light Co., 239 Or. 241, 395 P.2d 420, 397 P.2d 538 (1964), and Tarbet v. Green, 236 Or. 361, 388 P.2d 468 (1964), has been criticized by the plaintiff. The plaintiff urges that the last two cited cases are causing confusion and should be overruled. The defendant argues that if there is a conflict, Spring v. Liles should yield.

In Tarbet v....

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10 cases
  • Fullerton v. White
    • United States
    • Oregon Supreme Court
    • November 28, 1975
    ...The judgment of the trial court is affirmed. 1 Tarbet v. Green, 236 Or. 361, 388 P.2d 468 (1964) (overruled in Getchell v. Reilly, 242 Or. 263, 268, 409 P.2d 327 (1965)); Sylvia v. Helfer, 241 Or. 98, 404 P.2d 238 (1965). See also Kaufman v. Fisher, 230 Or. 626, 371 P.2d 948 (1962), and Joh......
  • Buchler v. State By and Through Oregon Corrections Div.
    • United States
    • Oregon Supreme Court
    • June 4, 1993
    ...court held that a plaintiff was not a guest passenger and overruled Tarbet v. Green, because it was "misleading." Getchell v. Reilly, 242 Or. 263, 267-68, 409 P.2d 327 (1965). The Fazzolari trilogy rests on this "[U]nless the parties invoke a status, a relationship, or a particular standard......
  • Argonaut Ins. Co. v. Ketchen
    • United States
    • Oregon Supreme Court
    • April 27, 1966
    ...not essential to avoid application of the guest statute and to obtain a judgment against Ketchen. The recent case of Getchell v. Reilly, 81 Adv.Sh. 753, 409 P.2d 327 (1965), determined that a passenger who was other than an employee could, in a proper case, recover against the Because the c......
  • Haley v. Dreesen
    • United States
    • Wyoming Supreme Court
    • March 5, 1975
    ...v. Bookspan, 155 Cal.App.2d 353, 318 P.2d 213.) The distinction between social guest and passenger is outlined in Getchell v. Reilly, 242 Ore. 263, 409 P.2d 327, 328 (1965), by reference to 2 Harper and James, The Law of Torts 958 (1956), where it is 'On the other hand, "Guest' should be de......
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