Steenson v. Robinson

• Decision Date: 13 February 1964
• Citation: 389 P.2d 27,236 Or. 414
• Parties: Brian STEENSON, Appellant, v. Thomas V. ROBINSON, Respondent, and Merle W. Prindel, Defendant.
• Court: Oregon Supreme Court

Page 27

389 P.2d 27

236 Or. 414

Brian STEENSON, Appellant, v. Thomas V. ROBINSON, Respondent, and Merle W. Prindel, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 4, 1964.

Decided Feb. 13, 1964.

Robert Mix, Corvallis, argued the cause and filed briefs for appellant.

Karl Huston, Corvallis, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

GOODWIN, Justice.

This is an action for damages arising out of an automobile collision. Plaintiff appeals from a judgment for the defendant. (A motion to dismiss this appeal was disposed of in Steenson v. Robinson, 77 Adv. Sh. 213, Or., 385 P.2d 738 (1963).)

Plaintiff has brought up neither a transcript nor a proper designation of portions thereof. (A partial transcript was filed in connection with the earlier motion to dismiss the appeal, but it was not made a part of the record pursuant to ORS 19.074.) We have only the trial court file. ORS 19.114 provides that a transcript (defined in ORS 19.005) will take the place of the constitution's 'bill of exceptions,' required under former practice. In the absence of a transcript or designated portions of the record brought up pursuant to ORS 19.074, there is nothing before us except the question whether the pleadings support the judgment. Dressler v. Isaacs et al., 218 Or. 128, 323 P.2d 64 (1958).

If the judgment were simply a judgment for the defendant entered upon the allowance by the trial court of the defendant's motion for a nonsuit, our consideration of this appeal would be at an end. It is impossible to rule upon the correctness of the ordinary involuntary nonsuit without a transcript of the material evidence. The judgment appealed from in this case, however, is not an ordinary judgment given upon an involuntary nonsuit. It reads in material parts as follows:

'* * * the defendant Robinson having moved for an order of involuntary nonsuit on the grounds that the pleadings established that the plaintiff was a guest passenger in the automobile driven by the said defendant Robinson at the time of the accident alleged in the Second Amended Complaint filed herein and that said Complaint only charged the said defendant Robinson with ordinary negligence and, therefore, failed to state facts sufficient to constitute a cause of action against said defendant Robinson * * *.'

Since the defendant asked the trial court to decide the case upon the pleadings, rather than upon the testimony, we will treat the judgment as a judgment on the pleadings.

In examining the pleadings to see whether they support the judgment, we begin with the second amended complaint. Paragraph II thereof reads as follows:

'That on the 12th day of May, 1961, defendant Thomas V. Robinson arranged to drive a certain Chevrolet tudor hardtop sedan, bearing Oregon license No. IV5907, from Corvallis to Eugene, Oregon, and return, and to carry as a passenger therein plaintiff Brain Steenson, said defendant to exercise control thereof. That prior to the commencement of said trip, an arrangement was made between plaintiff and defendant Thomas V. Robinson under which plaintiff was to pay to defendant Thomas V. Robinson the sum of $1.00 for such transportation.'

There follow the usual allegations of negligence and injury with a prayer for judgment. There is no allegation of gross negligence.

In due course the defendant filed an answer, containing a further and separate answer and defense of which paragraph III alleges:

'That the defendant Thomas V. Robinson [a minor] by his guardian ad litem Gerald S. Robinson, denies and disaffirms any arrangement or agreement on the part of the defendant Thomas V. Robinson to transport the plaintiff Brain Steenson from Corvallis to Eugene, Oregon and return on the 12th day of May, 1961, for the sum of One Dollar ($1.00) or for any other consideration * * *.'

To this affirmative defense the plaintiff interposed a demurrer, arguing that the right of an infant to avoid his contracts has nothing to do with the plaintiff's status as a paying passenger under the Oregon guest statute. ORS 30.115. The trial court overruled the demurrer. (This ruling is the only assignment of error briefed and argued by the parties.)

The plaintiff filed a reply which traversed all the affirmative allegations of the answer. The right to challenge the ruling on the demurrer is not waived by pleading over, but is saved by ORS 16.330. We construe the statute as extending to demurrers by plaintiffs the same protection it gives demurrers by defendants.

The judgment recites that there was a partial trial and a motion by the defendant for a judgment of involuntary nonsuit 'on the grounds that the pleadings established' that the plaintiff was not entitled to recover.

The pleadings could have established that the plaintiff was not entitled to recover if, but only if, the trial court was right in holding that a minor can disaffirm a paying-passenger arrangement after there has been an accident. If the trial court was right on this issue, then the defendant might have been entitled to a judgment on the pleadings had the pleadings been stripped down to that single issue. The pleadings, however, put is issue the fact of the alleged disaffirmance as well as the legal efficacy thereof. Since unresolved issues of fact remained after the pleadings were settled, there could be no judgment on the pleadings.

Since the cause...