Senechal v. Bauman

• Jurisdiction: Oregon
• Parties: Leo Peter SENECHAL, Jr., Appellant, v. Donald BAUMAN, Respondent.
• Citation: Senechal v. Bauman, 375 P.2d 60, 232 Or. 217 (Or. 1962)
• Court: Oregon Supreme Court
• Decision Date: 10 October 1962

Page 60

375 P.2d 60

232 Or. 217

Leo Peter SENECHAL, Jr., Appellant, v. Donald BAUMAN, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 10, 1962.

Oct. 10, 1962.

David W. Harper, Portland, for appellant. With him on the briefs were Keane & Haessler and Robert Neil Gygi, Portland.

Winfrid K. Liepe, Portland, for respondent. On the brief were Thomas E. Cooney and Maguire, Shields, Morrison, Bailey & Kester, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and DENECKE, JJ.

DENECKE, Justice (pro tem.)

Plaintiff-appellant brought an action against defendant-respondent for injuries alleged to have been caused by defendant's ordinary negligence. Defendant was the owner of the car. Plaintiff made no payment for his transportation and was driving at the time of the accident. Plaintiff alleged that the accident was caused by defendant, who was sitting in the front seat beside plaintiff, taking control of the steering wheel and causing the car to veer off the road. Plaintiff's evidence was that defendant took this action because of an erroneous belief that plaintiff had lost control of the car.

The jury awarded plaintiff $7,293.85. Defendant moved for a judgment notwithstanding the verdict on the ground that the undisputed evidence was that plaintiff was a nonpaying passenger and no gross negligence was alleged or proved. Defendant's motion was granted. Plaintiff's only assignment of error was the trial court's entering judgment for defendant based upon the motion for judgment notwithstanding the verdict.

Plaintiff admits that he was a guest passenger while he was driving defendant's car, up to the point that defendant attempted to seize or did seize control of the wheel.

Plaintiff contends that defendant's action in seizing the wheel changed the conditions under which plaintiff had previously accepted free transportation and that plaintiff's status as a nonpaying passenger ended because of defendant's action. Plaintiff states that if the accident had not intervened plaintiff would have refused to remain under the new conditions and would have demanded to be let out.

The Oregon guest passenger statute in effect at the time, ORS 30.110, provided, in part:

'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 * * * unless the accident was intentional on the part of the owner or operator or caused by his gross negligence * * *.'

This court has held that in order to be a nonpaying guest within the meaning of the above statute, there must be an acceptance of the nonpaying guest status, and if one is legally incapable of making such acceptance, such as a four year old infant, a nonpaying guest relationship cannot exist. Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297 (1950).

The court has not passed on the question of whether or not one who has accepted the nonpaying guest status at the beginning of a journey can change that status enroute, before the end of the journey. Other jurisdictions have differed in their answer to this question.

Georgia (Blanchard v. Ogletree, 41 Ga.App. 4, 152 S.E. 116 (1929), and Anderson v. Williams, 95 Ga.App. 684, 98 S.E.2d 579 (1957)), Ohio (Redis v. Lynch, 169 Ohio St. 305, 159 N.E.2d 597 (1959)), and Florida (Andrews v. Kirk, 106 So.2d 110 (Fa.App., 1958)) have specifically decided that if the facts were that the nonpaying passenger protested the host's driving and demanded to be let out of the vehicle then, either as a matter of law or as a question of fact, the passenger was no longer under the guest passenger statute. Washington has held to the contrary. Hayes v. Brower, 39 Wash.2d 372, 235 P.2d 482, 25 A.L.R.2d 1431 (1951), is the latest case from Washington. Other courts have held that a nonpaying passenger's protests with no accompanying or subsequent express demand to be let out of the car are not sufficient to change the status from that of a nonpaying passenger's with the limitations of the guest statute. For example, see Laplante v. Rousseau, 91 N.H. 330, 18 A.2d 777 (1941).

If this court were to follow those jurisdictions which hold that a nonpaying-passenger status can be terminated enroute by a protest against the host's driving coupled with a demand to be let out, the appellant nevertheless cannot prevail.

Plaintiff did protest to the specific faulty act which plaintiff claims caused the accident, i. e., defendant's grabbing the wheel. Plaintiff tried to wrest the wheel away from defendant and told him to get his hands off the wheel. Plaintiff did not demand to be let out of the vehicle. What he would have done in this regard if the accident had not happened, is unknown. Plaintiff argues '* * * it will be presumed that he would have made such a demand had he had the opportunity. To hold otherwise would be to presume that plaintiff would negligently consent to such illegal conduct of the defendant. * * *' Such presumption is strongly doubted, particularly, in that in this case plaintiff was a twenty year old Portlander driving on the Sunset Highway early in the morning from Portland; the accident occurred in the coast range a few miles from Seaside; and there was no evidence of any prior faulty driving or other culpable conduct by defendant.

If plaintiff's contention is correct here it would be equally applicable to many other nonpaying-passenger cases. Frequently, the facts in such cases are that the passenger protested the very act of faulty driving which caused the accident, making such protest at the time such act was being performed. With the hindsight that the faulty conduct produced an accident, the passenger could very well state that if he had had the opportunity he would have demanded to be let out.

However, plaintiff's position is not well taken. Plaintiff accepted the nonpaying-passenger status and, as plaintiff readily concedes, was in that status immediately prior to the allegedly negligent acts of defendant host. There is no evidence that plaintiff made any attempt to change that status. Evidence that plaintiff protested defendant's suddenly culpable conduct is not evidence that plaintiff desired to end his status as a nonpaying passenger. There must at least be evidence that the acceptance of the gratuitous transportation was impliedly or expressly rescinded or terminated. This is not accomplished merely by protest against the conduct which caused the injury.

Plaintiff urges that defendant has waived the right to urge that plaintiff was a nonpaying passenger under the limitations of the guest passenger statute, as defendant filed a general denial and did not raise the question of nonpaying passenger by an affirmative defense.

This court has not directly considered this contention previously. Some courts have held that the burden of proving that a passenger was not a nonpaying passenger is no plaintiff, with the inference, therefore, that plaintiff has the burden of alleging a status other than that of nonpaying...