Kudrna v. Adamski

• Decision Date: 21 March 1950
• Citation: Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262 (Or. 1950)
• Parties: KUDRNA v. ADAMSKI.
• Court: Oregon Supreme Court

216 P.2d 262

188 Or. 396

KUDRNA v. ADAMSKI.

Supreme Court of Oregon.

March 21, 1950

Argued Jan. 25, 1950.

David Spiegel argued the cause for respondent. On the brief were Lenske, Spiegel, Spiegel & Martindale, of Portland.

Randall B Kester, of Portland, argued the cause for appellant. With him on the brief were James J. Kennedy and Maguire, Shields Morrison & Bailey, of Portland.

Before LUSK, C. J., and BRAND, BELT, ROSSMAN and HAY, JJ.

LUSK, Chief Justice.

Plaintiff, a minor by her guardian ad litem, recovered a judgment for personal injuries sustained in an automobile accident which occurred while the plaintiff was the occupant of an automobile driven by the defendant. The defendant has appealed, assigning as error the court's denial of his motion for a directed verdict.

The sole question for decision is whether the plaintiff, at the time of the accident was being transported by the defendant as his 'guest', as that word is used in § 115-1001 O.C.L.A. If so, then the defendant was entitled to a directed verdict, for there is no evidence that the accident was intentional on his part or caused by his gross negligence or intoxication, or his reckless disregard of the rights of others. If, however, the plaintiff was not a guest, but sustained some other relation to the defendant, the court was right in submitting the question of the defendant's ordinary negligence to the jury and the judgment should be affirmed.

The controlling facts are not in dispute. At the time of her injury the plaintiff, Dolores Kudrna, was four years of age. The defendant is her uncle, the brother of her mother, who was killed in the accident. The automobile was owned by the child's father. An appointment had been arranged for Dolores with a doctor in Eugene, and the trip was made for the purpose of keeping this appointment. Mrs. Kudrna did not drive the car because she had no driver's license, and the defendant drove at the request of both Mr. and Mrs. Kudrna as a 'family courtesy'. En route to Eugene the right rear wheel of the car got onto the shoulder of the highway. In the driver's effort to bring it back onto the pavement the car went out of control and crashed on the other side of the road.

The statute reads: '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.' § 115-1001, O.C.L.A.

At the trial counsel for the plaintiff contended, as we are advised, that the guest relationship depends upon the existence of a contract between the owner or operator of the car and the person transported, and that, as the plaintiff was a minor and incapable of contracting, the relationship did not and could not arise. That position has now been abandoned, rightly as we think, and the contention here is that a child only four years of age is incapable of being a guest because such a child is too young voluntarily to assume that relationship.

There is no Oregon case directly on the point, though there are several decisions in which minors were treated as guests. Lawry v. McKennie, 177 Or. 604, 164 P.2d 444 (twelve-year-old girl); Cockerham v. Potts, 143 Or. 80, 20 P.2d 423 (nine-year-old boy); Rauch v. Stecklein, 142 Or. 286, 20 P.2d 387 (nineteen-year-old boy). In none of them, however, was the question of their status drawn in issue or discussed, and in none was the guest a very young child. They throw no light on the question.

Referring to the evils which brought about the enactment of the guest statute, we said in Albrecht v. Safeway Stores, Inc., 159 Or. 331, 336, 80 P.2d 62, 65: '* * * It was not considered just that one who accepts the kindness or hospitality of an automobile owner or operator, in extending an invitation to ride, should recover damages for personal injuries unless the same resulted from gross negligence, intoxication, or an intentional wrong.'

See, to the same effect, Crawford v. Foster, 110 Cal.App. 81, 87, 293 P. 841; Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 471, 95 A.L.R. 1177.

In the Albrecht case 159 Or. at page 337, 80 P.2d at page 65 the word 'guest', as used in the statute, was said to mean 'one who accepts a ride in any motor vehicle without payment therefor, and for his own pleasure or business. He is the recipient of the hospitality of the owner or driver'.

Thus, the statute implies that in order to become a guest one must exercise a choice in the matter, and we think that a four-year-old child has not the legal capacity to exercise such a choice, just as he is incapable of negligence. Macdonald v. O'Reilly, 45 Or. 589, 599, 78 P. 753. See Fuller v. Thrun, 109 Ind.App. 407, 31 N.E.2d 670, 672, where the court, in holding that a child six years of age was incapable of being a guest, said: 'If children under seven years of age are conclusively presumed to be incapable of committing crime and if they are conclusively presumed to be incapable of contributory negligence, it would seem that this age limit should also be adopted in determining whether or not a child of tender years can be a guest.'

In any event a four-year-old child, who enters an automobile in the custody of a parent or other custodian, does not do so of its own free will and cannot be said to have accepted an invitation to ride from the owner or operator of the car. Thus, in Hart v. Hogan, 173 Wash. 598, 24 P.2d 99, 103, a twelve-year-old girl in the custody of her mother, was held not to be the guest of the owner of an automobile, the court saying that she 'was an involuntary occupant of the automobile. She had no option other than to accompany her mother.'

A like result was reached in Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 483. A five-year-old child had been injured at a picnic, and, without the knowledge or consent of its parents, was taken by the defendant into his automobile and was being transported to a hospital when an accident occurred. Expressing a doubt as to whether a child that young could give consent to the transportation, the court placed its decision upon the ground that the child in fact did not give its consent but was an 'involuntary occupant of the vehicle'. It was said that the statute 'imports both a knowing and a voluntary acceptance, and does not include either (an) involuntary or a forced ride', and the court added 'that a five year old child has no capacity to 'accept', in any legal sense.' See, also, Kastel v. Stieber, 215 Cal. 37, 8 P.2d 474, same case below, Cal.App., 297 P. 932. Rocha v. Hulen is sought to be distinguished because the California statute reads, 'any person who as a guest accepts a ride in any vehicle', etc., St.1931, p. 1693, § 141 3/4 (italics added); while our statute does not contain the word 'accepts'. But, as we have seen, this court has defined a guest as one who 'accepts' a ride, so that the suggested ground of distinction does not exist.

The defendant was not the plaintiff's host because 'he had no right to say who should ride in the car; and hence could not have invited plaintiff to ride.' Richards v. Parks, 19 Tenn.App. 15, 93 S.W.2d 639, 642. While Mr. Kudrna was owner of the car, Mrs. Kudrna was not his guest at the time of the accident nor was she the guest of the defendant, the driver. The trip was taken for the purpose of accomplishing a particular piece of business in which she and her husband were jointly interested. Together they engaged the services of the defendant as driver. He was their agent, and they were joint principals in the enterprise. The authorities support this view.

In Herzog v. Mittelman, 155 Or. 624, 65 P.2d 384, 109 A.L.R. 662, the owner of an automobile in which he and three friends, his guests, were taking a trip, turned the wheel over to one of the guests, and, while the latter was driving, an accident occurred in which another guest was injured. He sued the driver, and we held that the latter was the agent of the owner in the operation of the car and entitled to such immunities as were not personal to the principal. Hence, the plaintiff was required to prove gross negligence in order to recover.

In Gledhill v. Connecticut Company, 121 Conn. 102, 183 A. 379, 381, two friends started out on a fishing trip in an automobile owned by one of them. At the request of the owner of the car his friend drove and an accident occurred in which the owner was killed. In an action brought to recover for his death a contention that he was the guest of the operator of the car at the time of the accident was rejected, the court saying 'the most that is indicated is that Graham (the defendant) was performing a gratuitous service for Gledhill (the deceased).'

In Richards v Parks, supra, which was relied on by this court as authority in the Mittelman case, a mother planned and arranged an automobile trip for herself and her husband and their two children. The defendant Richards was taken along to assist in the driving. He was furnished his transportation and lodging. While he was driving one of the children, a twelve-year-old boy, was injured in an accident which occurred in the state of Virginia, where there is no automobile guest statute but the common law gross negligence rule prevails. The boy sued Richards. It was held that Richards, a mere agent with no right of control, was not the boy's host because 'The relation of host and guest presupposes (1) that the host has a right to extend hospitality to the guest at the particular place where he is invited to be present, and (2)...