Rosa v. Briggs

• Decision Date: 10 February 1954
• Citation: 266 P.2d 427,200 Or. 450
• Parties: ROSA v. BRIGGS et al.
• Court: Oregon Supreme Court

Page 427

266 P.2d 427

200 Or. 450

ROSA v. BRIGGS et al.

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 20, 1954.

Decided Feb. 10, 1954.

Howard K. Beebe, Portland, argued the cause for appellant. With him on the brief were Maguire, Shields, Morrison & Bailey, Portland.

Burl L. Green, Portland, argued the cause for respondent. On the brief were Green, Richardson & Green, and Dean N. Alexander, Portland.

TOOZE, Justice.

This is an action to recover damages for personal injuries allegedly caused by the negligent operation of two motor vehicles, brought by Arthur Rosa, as plaintiff, against Herbert G. Briggs and J. O. Lafferty, as defendants. The case was tried to a jury and resulted in a verdict being returned in favor of the defendant Lafferty against the plaintiff. A verdict also was returned in favor of plaintiff against the defendant Briggs for the sum of $4,000. Judgments were entered accordingly. Defendant Briggs appeals.

Defendant's sole assignment of error in this court is that the trial court erred in overruling his motion for a directed verdict, which motion was as follows:

'Defendant Briggs at this time moves the Court for a judgment directing a verdict in favor of Defendant Briggs on the ground and for the reason that there is no evidence to go to the jury on the question of a contract having been entered into between Briggs and Rosa for the transportation on this trip to take this case out of the guest statute.'

Section 115-1001, O.C.L.A., § 30-110, ORS, generally referred to as 'the guest statute', provides:

'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transporation 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.' (Italics ours.)

The accident out of which this litigation arose occurred on August 13, 1948, at the intersection of S. W. Barbur boulevard and S. W. 19th avenue, in Multnomah county, Oregon. S. W. Barbur boulevard is an arterial four-lane highway, running in a general northerly and southerly direction, and is intersected by S. W. 19th avenue, which runs in a general easterly and westerly direction. Travel at the intersection is controlled to some extent by an electric yellow caution light.

The automobile in which plaintiff was riding at the time of the accident (in the back seat thereof) was owned and being operated by the defendant Briggs. This car was proceeding southerly along S. W. Barbur boulevard. The defendant Lafferty was operating his car in a general westerly direction upon and along S. W. 19th avenue, and was crossing the intersection with S. W. Barbur boulevard. The Briggs car struck the Lafferty car broadside, and, as the result of the collision, plaintiff suffered the personal injuries of which he complains.

Prior to the accident, both plaintiff and defendant Briggs were employed in the construction of a private dwelling located near S. W. 58th avenue and Taylor's Ferry road, in Multnomah county. Plaintiff had been employed on the work for approximately three weeks, and defendant Briggs, for approximately one week. One Henry L. Rocco was foreman on the job and had employed Briggs. At the time of the accident, Rocco also was riding in the Briggs automobile, and in the front seat thereof. Briggs, Rocco, and plaintiff were on their way to work at the time of the accident.

At the time in question, plaintiff and Rocco lived at the Columbia hotel, located at S. W. Front avenue and S. W. Columbia street in Portland, Oregon; defendant Briggs lived at 2027 S. W. Second avenue (between S. W. Grant and S. W. Lincoln streets) in Portland.

On the morning of the accident, as well as for a few days prior thereto, the defendant Briggs drove his car from his home to the Columbia hotel for the purpose of transporting Rocco and plaintiff to their mutual place of employment. Over a period of six or seven days immediately prior to the day of the accident, defendant Briggs had been regularly transporting plaintiff and Rocco back and forth between the scene of their employment and the Columbia hotel each day they worked.

Prior to the commencement of this transportation, plaintiff and Briggs had been entire strangers, but Briggs had known Rocco over a period of a year. When Rocco employed Briggs on the job he asked Briggs if he might ride with him to and from work. Briggs consented. Thereupon, Rocco asked for similar transportation for plaintiff, to which Briggs agreed.

In order to furnish transportation for plaintiff and Rocco, it was necessary each morning for Briggs to drive approximately 12 city blocks north from his home to the Columbia hotel and then to retrace his steps south and on to their place of employment. He was required to repeat the drive each evening upon returning to Portland. Therefore, this arrangement required Briggs to drive 48 blocks out of his way each day in order to provide the transportation in question.

Payday on the job was either on Monday or Tuesday, and on either Monday or Tuesday, August 9th or 10th, plaintiff was paid. At that time he had ridden four times with Briggs. He paid Briggs $2 in cash on that day, stating to Briggs that it was for 'travel expense' or 'transportation on the job'. Briggs accepted the money. Thereafter, no change was made in the transportation arrangements, and prior to the accident, plaintiff had ridden with Briggs on one or two additional days--the only days he worked.

We have not attempted to review all the facts in the case, but the foregoing statement is sufficient for our purposes.

Plaintiff in his complaint alleged two causes of action against defendant Briggs. In one he charged Briggs with gross negligence within the meaning of the guest statute; in the other, he charged ordinary negligence.

The charge of ordinary negligence was based upon the theory and further allegations of the complaint that plaintiff was paying for his transportation and, hence, was not subject to the restrictions of the guest statute.

The trial court took from the jury's consideration the matter of gross negligence, upon the ground that there was insufficient evidence to submit that question. The trial court erred in this action, and were it necessary to reverse this case, we would be compelled to remand it for a new trial upon the question of gross negligence.

However, the issue before us now for determination is whether there is sufficient substantial evidence in the record from which a jury might reasonably infer that there was an understanding between plaintiff and Briggs that plaintiff should pay for his transportation.

The motion for a directed verdict presents the question as to whether there is any substantial evidence to support the verdict and judgment. When the sufficiency of the evidence is thus challenged, the court must view the record in the light most favorable to the plaintiff. Moreover, plaintiff is entitled to the benefit of every reasonable inference that can be drawn from the evidence in his favor. Glascock v. Anderson, Or., 257 P.2d 617, 619; Willoughby v. Driscoll, 168 Or. 187, 191, 120 P.2d 768, 121 P.2d 917.

Upon the trial defendant seemed to be of the opinion that unless plaintiff could prove an express agreement between himself and Briggs to pay for the transportation, an agreement made prior to the time the transportation commenced, he was not entitled to recover. This contention finds support in Smith v. Laflar, 137 Or. 230, 2 P.2d 18, but that decision was expressly overruled in Luebke v. Hawthorne, 183 Or. 362, 367, 192 P.2d 990. It also was impliedly overruled in Albrecht v. Safeway Stores, Inc., 159 Or. 331, 340, 80 P.2d 62. In the Albrecht case, supra, 159 Or. at page 340, 80 P.2d at page 66, we said:

'* * * It is not necessary to prove a legal contractual obligation in order to remove plaintiff from the status of a guest.'

Defendant invites attention to a number of decisions from other jurisdictions in which the broad principle is laid down that where the evidence shows only a voluntary contribution to the host toward the expenses normally incurred in the operation of the automobile, that does not necessarily change the guest-host relationship, and especially so when the host has already commenced furnishing transportation gratuitously as a gesture of hospitality.

In Rogers v. Vreeland, 16 Cal.App.2d 364, 60 P.2d 585, 587, cited by defendant, the court, in construing the guest statute, said:

'* * * we are of the opinion that the section is applicable to a case such as the one now before us, where the riders, on a trip purely social [a trip to see wild flowers in the San Joaquin Valley], and without any commercial or business element, agreed to pay their share of the running expenses of the automobile and their share of any other expense on the trip. We do not consider such an arrangement between the riders and the driver as the giving by the former to the latter of such compensation as removes the riders from the status of 'guests' within the meaning of the act.' (Italics ours.)

Defendant in his brief also quotes from Potter v. Juarez, 189 Wash. 476, 66 P.2d 290, 292, the following:

'If one rides with a friend, or even with a stranger upon his invitation, having no pre-existing understanding as to sharing the expense, he is a guest only and will so remain even though he gratuitously offers some return favor such as paying for a meal, paying for gas, or providing the cigarettes. Such a return of favors does not of itself destroy the relation of host and guest.' (Italics ours.)

Our own decisions in which we have construed the 'guest statute' are not out of harmony with the above statements of the California and Washington courts. We deem it unnecessary to discuss...