Haas v. Bates

• Decision Date: 09 July 1935
• Citation: Haas v. Bates, 150 Or. 592, 47 P.2d 243 (Or. 1935)
• Parties: HAAS v. BATES et al.
• Court: Oregon Supreme Court

47 P.2d 243

150 Or. 592

HAAS v. BATES et al.

Supreme Court of Oregon

July 9, 1935

In Banc.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Action by J. Cleveland Haas against Paul C. Bates and others to recover damages for personal injuries sustained while plaintiff was riding in an automobile operated by defendantWalter E. Pearson.From a judgment in favor of plaintiff against defendants, defendants appeal.

Affirmed.

Frank S. Senn, of Portland (Senn & Recken, of Portland, of counsel), for appellants.

Louis Schnitzer, of Portland, for respondent.

KELLY, Justice.

The accident resulting in plaintiff's injuries occurred on Friday, the 13th day of October, 1933, near the town of Remote.The car in which plaintiff and defendant Pearson were riding left the road at a curve and overturned.Defendants contend that plaintiff was a guest while riding in the automobile of defendant Pearson.The plaintiff contends otherwise.

It is an admitted fact that defendants constituted a copartnership and, as partners, were financially interested in a beach placer mining property near Bandon, Or. Plaintiff is a mining engineer with his offices in Portland.Defendants sought his services in the matter of making an examination and a report upon such mining property.

Only two of the defendants, Bates and Pearson, were present when the arrangements for such examination were made.

We quote from plaintiff's testimony:

"They called at my office, as I said, and told me, Mr. Bates and Mr. Pearson, told me they were members of the firm of Bates, Lively & Pearson, which was interested in a beach placer mine near Bandon, Oregon, and they were talking to me with respect to examining that property and making a report.They wanted to know what my charge would be and I told them what it would be and there was a little discussion about the terms and we finally decided they would pay me $100.00 and all expenses to make the examination and report; and I asked them how soon they wanted me to go down and they said: 'Well, just as soon as possible.''Well', I said, 'I can go by train or I can go by bus; I haven't a car here' and Mr. Pearson said: 'Well, I have never seen that mine; I have got some money in it; may put up some more; I want to see it first and I am going down tomorrow morning,' and he said: 'I want you to go along with me.' ***

"Q.What was the final agreement that you said you reached with these gentlemen?A.As to payment?

"Q.Yes, compensation.A. $100.00 and all expenses in connection with the examination, traveling, hotels, any expenses that were incurred in connection with the commission. ***

"Q.Who paid the expenses at the hotel?A.Mr. Pearson paid all my expenses.

"Q.Mr. Pearson paid all your expenses?A.Yes."

We quote from Mr. Pearson's testimony: "We finally agreed with Mr. Hass that he should go down there for the price of $100.00 and expenses and he discussed, said something about he might go on a train or bus or something like that, and as we were leaving the room, it occurred to me that I hadn't seen this place; I didn't know anything about it; and I would like to go down there myself, and I mentioned to Mr. Bates, I think I would like to take a trip down there with Mr. Haas; so I offered to have him go with me and it was agreed that I should meet him at the Porter Building the next morning at 7:00 o'clock."

Defendant Bates testified as follows: "A.The arrangement was that he go down there for one hundred dollars and his expenses and it was even discussed as to whether he would go on the bus or train or the stage; it didn't make any difference; he could go over either way just as quick; we only asked him Mr. Pearson did, that he make the trip as soon as he could.He said he would go the next day.We then arose from our chairs and turned toward the door.We had made what I understood a very definite arrangement and as I,-I remember I was about to open the door, when Mr. Pearson mentioned, 'By the way, I think I would like to go down there myself,' and I says, 'Why don't you, Walter; you have never been there; Paul Lively and I have been there and you might as well go and see it, if you like to; it is nice weather.'So they entered into conversation as to when they could go the next day and what time was agreeable to both parties."

Defendants rely upon the case of Smith v. Laflar,137 Or. 2302 P.2d 18, in support of their contention in the case at bar that plaintiff was merely a guest when the accident occurred.In the Smith v. Laflar Case, the guest statute is quoted, and then it is stated: "This statute makes payment, or the creation of an obligation to pay, for the transportation furnished the test of liability except in cases of gross negligence," etc.It is also there stated that: "'Payment' is the transfer of money or property or some other thing of value in discharge of an existing obligation."There, the defendant was a real estate broker who transported the plaintiff from Salem to Harrisburg in an attempt to...