Johnson v. Kolovos

CourtSupreme Court of Oregon
Citation355 P.2d 1115,224 Or. 266
PartiesTom JOHNSON, Respondent, v. Gus KOLOVOS, Appellant, and George A. Rife, Defendant.
Decision Date12 October 1960

D. E. Hershiser, Portland, argued the cause for appellant. On the brief were Hershiser, McMenamin, Blyth & Jones, Portland.

James Walton, Corvallis, argued the cause for respondent. On the brief were Ringo & Walton, Corvallis.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.

HOWELL, Justice pro tem.

This is an action for personal injuries incurred when the car in which plaintiff was riding, either as a passenger or a guest of defendant Kolovos, collided with one driven by the defendant Rife. Special interrogatories were submitted to the jury, resulting in a verdict in favor of the defendant Rife and against the defendant Kolovos. The jury, by its answer to the special interrogatories, found that plaintiff was being transported by the defendant Kolovos for payment; that the defendant Kolovos was guilty of ordinary but not gross negligence and that such negligence was the proximate cause of plaintiff's injuries. Defendant appeals.

The defendant presents five assignments of error. His first two, that the trial court erred in overruling his motions for involuntary nonsuit and directed verdict, will be considered together. His motions were upon the ground that the evidence did not show that plaintiff was a 'paying passenger.'

Plaintiff alleged two causes of action against the defendant. In the first he charged ordinary negligence; in the other he charged the defendant with gross negligence within the meaning of the guest statute. The jury found the defendant was not grossly negligent; hence, we are only concerned whether there was any substantial evidence that plaintiff was being transported as a passenger.

Both motions require a review of the evidence and in the light most favorable to plaintiff.

The plaintiff and defendant were of Greek ancestry and lived in Tacoma, Washington. They were retired and had been friends for several years. The defendant had been planning an extensive vacation trip to Oregon, California, Arizona, and Idaho and desired to have someone accompany him. The plaintiff did not drive. The plaintiff testified that before their departure he insisted upon an equal sharing of all the expenses of the trip, including gas, oil and parking, in addition to the expense of food and lodging. At first the defendant was reluctant to accept the offer but finally stated: 'If that's the way yon want it I accept.'

The vacation trip ended in an accident near Corvallis, Oregon, and this action ensued.

ORS 30.110, generally known as 'the guest statute,' provides:

'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 the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of said owner or operator or caused by his gross negligence or intoxication on his reckless disregard of the rights of others.' (Emphasis supplied.)

The tests to determine the distinction between passengers and guests are hopelessly in conflict. 10 A.L.R.2d 1351; 2 Harper and James, the Law of Torts 958, § 16.15.

The 'guest statute' should be construed in the light of the legislative purpose and should not be extended beyond the correction of the evils and the attainment of the permissible social objects inducing its enactment. Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297; 5A Am.Jur. 552, Automobiles and Highway Traffic § 514; 2 Harper and James, The Law of Torts 961, § 16.15.

In Melcher v. Adams, 174 Or. 75, 146 P.2d 354, a guest was defined as one transported gratuitously, and a passenger, as one who pays for his transportation.

Payment does not necessarily mean a money compensation and is not to be considered in its restricted legal sense as the discharge in money of a sum due or the performance of a pecuniary obligation. Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62.

In the Albrecht case, concerning the question of payment, the court applied the test of substantial benefit, i. e., was some substantial benefit conferred upon the owner or operator of the vehicle as compensation for the transportation? If there was, the person transported is not a guest.

Melcher v. Adams, supra, enlarged the rule of substantial benefit as the test to add that the benefit conferred must not only be substantial but in a material or business sense and that the transportation must be motivated by the expectation of such benefit.

The additional requirement of 'motivation' was adopted from the Washington cases of Fuller v. Tucker, 4 Wash.2d 426, 103 P.2d 1086; and Syverson v. Berg, 194 Wash. 86, 77 P.2d 382, and was reiterated in Oregon in Luebke v. Hawthorne et al., 183 Or. 362, 192 P.2d 990; and Rosa v. Briggs and Lafferty, 200 Or. 450, 266 P.2d 427.

The necessity that the expectation of benefit be the motivating factor in the furnishing of the transportation has caused much confusion, not only in Washington but in California, where the rule also exists. Recognizing that motivation becomes a matter of degree, as people may act from mixed motives, Washington has qualified the requirement of motivation to the extent that it need not be shown that the expectation of benefit be the sole motivating factor, but it is sufficient if such expectation is a substantial factor. McUne v. Fuqua, 42 Wash.2d 65, 253 P.2d 632; Hayes v. Brower, 39 Wash.2d 372, 385, 235 P.2d 482, 25 A.L.R.2d 1431. See also 24 Wash.L.Rev. 101 for an analysis of the motivation rule in Washington.

California also formerly followed the rule that the benefit must be the motivating factor for the furnishing of the transportation. McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909. In later California cases the benefit is required to be only a motivating factor. Whitmore v. French, 37 Cal.2d 744, 235 P.2d 3; Thompson v. Lacey, 42 Cal.2d 443, 447, 267 P.2d 1; Martinez v. Southern Pacific Co., 45 Cal.2d 244, 250, 288 P.2d 868; Harris v. Harfmann, 113 Cal.App.2d 615, 616-617, 248 P.2d 501; Brandis v. Goldanski, 117 Cal.App.2d 42, 48, 255 P.2d 36; Kroiss v. Butler, 129 Cal.App.2d 550, 555-556, 277 P.2d 873; Ray v. Hanisch, 147 Cal.App.2d 742, 748, 306 P.2d 30; Clapp v. Hester, 169 Cal.App.2d 558, 337 P.2d 525.

In Brandis v. Goldanski, supra [117 Cal.App.2d 42, 255 P.2d 40], the benefit was required to be 'at least 'a' motivating influence.' (Emphasis supplied.)

The scope of the motivation rule in California is now obscure, and lower courts are in a state of disagreement as to the exact wording to be used. 43 Cal.L.Rev. 853 (1955).

The conflict that exists as to whether the benefit must be 'the,' 'a,' 'at least a,' or 'a substantial factor' of the motivation illustrates the confusion. In addition, as motivation is a state of mind and people may act from mixed motives, the question of such motivation must necessarily depend to a great extent upon the testimony of the driver or owner. We conclude that the motivation test is confusing and too difficult to apply; therefore, we expressly overrule it.

We believe that the better rule is that announced in 2 Harper and James, The Law of Torts 961-962, § 16.15. In the instant case, as the plaintiff's evidence showed an agreement to share the expenses of the trip, the plaintiff was not a guest, as his status was that of one who rides 'pursuant to any prearrangement for sharing the burdens of the journey, so long as the occupants' undertaking is not so vague or so trivial as to indicate that there was no real sharing worthy of the name.' 2 Harper and James, supra.

Plaintiff's contribution to the expenses of the journey in this case would have been more than 'vague or trivial' as the trip was to have been of extended duration. If one rides with no previous understanding concerning the sharing of the expenses, the gratuitous offer of a return favor such as paying for a meal or buying some gas will not change the occupant's status from guest to passenger. Potter v. Juarez, 189 Wash. 476, 66...

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  • Fullerton v. White
    • United States
    • Supreme Court of Oregon
    • 28 Noviembre 1975
    ...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 Johnson v. Kolovos, 224 Or. 266, 355 P.2d 1115 (1960).2 Skow v. Shulps, 224 Or. 548, 356 P.2d 521 (1960); Gilmore v. Schiewe, 237 Or. 98, 390 P.2d 624 (1964); Reed v. Wilson,......
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    ...a similar problem where the question presented is whether a person is a guest under the guest statute, ORS 30.110. See Johnson v. Kolovos, 1960, Or., 355 P.2d 1115. The distinction is recognized in several cases. Beer v. Beer, supra; Jensen v. Canadian Indemnity Co., 9 Cir., 1938, 98 F.2d 4......
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    ...party and a juror, the trial court did not abuse its discretion in denying Abrams's motion for a mistrial. See, e.g., Johnson v. Kolovos, 224 Or. 266, 274-75, 355 P.2d 1115 (1960) (no abuse of discretion in denying motion for mistrial after the plaintiff and a juror had a conversation unrel......
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