Melcher v. Adams
| Decision Date | 07 March 1944 |
| Citation | 174 Or. 75,146 P.2d 354 |
| Parties | MELCHER <I>v.</I> ADAMS |
| Court | Oregon Supreme Court |
Who is guest within contemplation of statute regarding
liability of owner or operator of motor vehicle for injury to
guest, note, 95 A.L.R. 1180. See, also, 5 Am. Jur. 634
42 C.J., Motor Vehicles, § 803
Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Action by Henry J. Melcher against Sterling Adams to recover for injuries sustained when plaintiff was thrown from defendant's automobile in an accident. Judgment for plaintiff, and defendant appeals.
REVERSED. REHEARING DENIED.
F.S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant.
Barnett H. Goldstein, of Portland (Arthur B. Baines, of Portland, on the brief), for respondent.
This action was brought by Henry J. Melcher against Sterling Adams, to recover damages for injuries suffered by the plaintiff when he was thrown from an automobile in which he was riding as either a passenger or a guest of the defendant, who was driving the car. From a judgment in favor of the plaintiff the defendant has appealed.
One of the principal matters to be considered is whether or not the circuit court erred in submitting to the jury the question of the plaintiff's status, that of passenger or guest, in the defendant's car at the time of the accident. To the instruction presenting that question to the jury the defendant excepted as follows:
"Furthermore, I want to except to the court leaving to the jury the question of whether or not the plaintiff was a guest or a passenger here, for the reason that the evidence does not show the relationship of any other than host and guest."
1. It is asserted by the plaintiff that the exception quoted We are of the opinion that the exception was sufficiently specific and definite. Its meaning must have been clear to the presiding judge, inasmuch as during the entire trial the plaintiff was insisting that he was a passenger in the defendant's automobile when injured, and not a guest, while the defendant's contention was that the plaintiff was a guest.
The defendant and the plaintiff were longshoremen and had been acquainted with each other for five or six years prior to the accident. The plaintiff had ridden to and from work with the defendant a great many times, both in his own car and in that of the defendant.
On January 15, 1942, the plaintiff accompanied the defendant in the latter's automobile from Portland to Bar View on the Pacific ocean, a distance of approximately eighty-eight miles. The defendant had previously sold and on that date was going to deliver to a buyer there what is referred to in the testimony as a clutch for a marine engine, as a "gear" or as a "pump". It was approximately two feet long and twelve inches in diameter, weighed from one hundred to one hundred twenty-five pounds, and was "almost a solid piece of iron".
The trip to the beach was made along the Wilson River highway, and the return journey by way of Wolf Creek road. After delivering the gear the plaintiff and the defendant went "to the fishing dock and talked to the boys" for about an hour. Their purpose in returning to Portland by way of the Wolf Creek road and thereby adding about fifty miles to the trip was "just to waste a little time". It was on the return trip, near Portland, that the automobile skidded on icy pavement and went over an embankment. The plaintiff was thrown from the car and injured.
His reason for taking the drive with the defendant was thus explained by the plaintiff:
The plaintiff then testified that the defendant called for him at his residence and they then drove to the home of the defendant's sister, to get the gear or pump. In that connection he gave further testimony, as follows:
It was necessary to carry the pump or gear some fifteen or twenty feet to place it in the back end of the defendant's car; and when it was taken out at Bar View it had to be carried the length of the car.
The defendant stated that he asked the plaintiff to accompany him on the trip, and concerning the plaintiff's part in loading and unloading the gear he also testified, thus:
* * *
The defendant had planned to make the trip to the beach a week before the date of the accident, but had been deterred from doing so by a "silver thaw" which coated roads and highways with ice. On the day of the accident there was "ice all along the sides of the road" between Portland and the Coast Range mountains. The plaintiff and the defendant differed in their testimony as to the presence of ice on the pavement other than that at the place of the accident. The plaintiff stated that there was ice elsewhere on the pavement and that the automobile had skidded at one other time before the accident occurred. The defendant, however, testified that the only ice on the highway was at the place of the accident. The plaintiff did not, nor was he requested to, drive the car at any time during the trip. Nor did the defendant invite him to accompany him for the purpose of assisting in the driving.
Section 115-1001, O.C.L.A., is as follows:
"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...
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