Johnson v. Kolovos

• Court: Supreme Court of Oregon
• Writing for the Court: Before McALLISTER; HOWELL
• Citation: 355 P.2d 1115,224 Or. 266
• Decision Date: 12 October 1960
• Parties: Tom JOHNSON, Respondent, v. Gus KOLOVOS, Appellant, and George A. Rife, Defendant.

Page 1115

355 P.2d 1115 224 Or. 266 Tom JOHNSON, Respondent,
v.
Gus KOLOVOS, Appellant, and
George A. Rife, Defendant. Supreme Court of Oregon, Department 2. Argued and Submitted Sept. 14, 1960.
Decided Oct. 12, 1960.

Page 1116

[224 Or. 268] 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.'

[224 Or. 269] 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

Page 1117

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.)

[224 Or. 270] 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 [224 Or....