Appeal
from Circuit Court, Multnomah County; Robert G. Morrow
Judge.
Action
by Virginia M. Stewart against J. O. Houk, P. M. Houk, and
William L. Van Allen, partners doing business under the
assumed name and style of the Redmond Garage, and another.
From a judgment of dismissal, plaintiff appeals. Reversed.
In her
complaint, the plaintiff alleges that April 30, 1927, she was
riding in an automobile on the public highways of this state
"as an expressly invited guest" of the defendant
who was the owner and operator of the car, that the latter
drove it negligently, and that the proximate result of his
negligent operation was an injury to the plaintiff, for which
the complaint prays redress in damages. The defendant
demurred upon the ground that the complaint failed to allege
a cause of action. The demurrer was sustained. From the
consequent judgment of dismissal, the plaintiff has appealed.
ROSSMAN
J.
The
sole problem presented to us is whether chapter 342 of the
1927 Session Laws is in conflict with the Oregon
Constitution. The act provides:
"Any person who as a guest accepts a ride in any
vehicle, moving upon any of the public highways of the state
of Oregon, and while so riding as such guest receives or
sustains an injury, such person shall have no right of
recovery against the owner or driver of such motor vehicle,
and in the event that such person while so riding as such
guest is killed or dies as a result of injury sustained while
so riding as such guest, then neither the estate nor the
legal representatives of such guest shall have any right of
recovery against the driver or owner of said car by reason of
the death of the said guest, and if such person so riding as
a guest be a minor and sustain an injury or be killed or die
as a result of injury sustained while so riding as such
guest, then neither the parents nor guardian nor the estate
nor legal representatives of such minor shall have any right
of recovery against the driver or owner of said car for
injury sustained or as a result of the death of such minor.
Acceptance of a free ride as a guest in a motor vehicle shall
be presumed to be a waiver of said guest of liability for
accidental injury caused by (the) owner or driver of such
motor vehicle."
Article
1, § 10, Oregon Constitution, provides:
"* * * And every man shall have remedy by due course of
law for injury done him in his person, property, or
reputation."
The
purpose of this provision is to save from legislative
abolishment those jural rights which had become well
established prior to the enactment of our Constitution. Such
has been the frequent pronouncement of this court.
Mattson v. Astoria, 39 Or. 577, 65 P. 1066, 87 Am.
St. Rep. 687; Batdorff v. Oregon City, 53 Or. 402,
100 P. 937, 18 Ann. Cas. 287; Theiler v. Tillamook
County, 75 Or. 214, 146 P. 828; Pullen v.
Eugene, 77 Or. 320, 146 P. 822, 147 P.
768, 1191, 151 P. 474, Ann. Cas. 1917D, 933; Humphry v.
Portland, 79 Or. 430, 154 P. 897; Caviness v. City
of Vale, 86 Or. 554, 167 P. 95; Gearin v. Marion
County, 110 Or. 390, 223 P. 929; West v.
Jaloff, 113 Or. 184, 232 P. 642, 36 A. L. R. 1391. The
federal Circuit Court for the District of Oregon has declared
to similar effect. Eastman v. Clackamas County, 32
F. 24. The language of Mr. Chief Justice Bean, in Mattson v.
Astoria, supra, makes very clear the intent of the foregoing
constitutional provision; we quote as follows:
"The constitutional provision guarantying to every
person a remedy by due course of law for injury done him in
person or property is found in the constitutions of many of
the states, and means, as said by the Supreme Court of
Missouri, 'that for such wrongs as are recognized by the
law of the land the courts shall be open and afford a
remedy' ( Landis v. Campbell, 79 Mo. 433, 439,
49 Am. Rep. 239); or, as interpreted by the Supreme Court of
Wisconsin, 'that laws shall be enacted giving a certain
remedy for all injuries or wrongs' ( Flanders v. Town
of Merrimack, 48 Wis. 567, 575, 4 N.W. 741). It was
intended to preserve the common-law right of action for
injury to person or property, and while the legislature may
change the remedy or the form of procedure, attach conditions
precedent to its exercise, and perhaps abolish old and
substitute new remedies ( McClain v. Williams, 10
S.D. 332, 73 N.W. 72 [; Reining v.
City of Buffalo, 102 N.Y. 308, 6 N.E. 792), it can not
deny a remedy entirely. It is immaterial, therefore, whether
a municipal corporation is technically liable at common law
for negligence in not keeping its streets in repair, because,
as said by Mr. Justice Earl in Fitzpatrick v.
Slocum, 89 N.Y. 358, 'there must be a remedy in such
a case, where one is injured, without any fault of his own,
by a defect in one of the streets or bridges of the
city--either against the city or some one of its officers.' And the charter of Astoria attempts to
deny both. Whether a municipal corporation was liable to a
common-law action or not, its officers were so liable to an
individual specially damaged by their negligent act or
omission; and the charter provision under consideration
attempted to take away the remedy against the officers, as
well as against the city, and is therefore void."
In
Theiler v. Tillamook County, the language of Judge Deady in
Eastman v. Clackamas County, supra, was adopted. The portion
of Judge Deady's decision quoted was the following:
"Whatever injury the law, as it then stood, took
cognizance of and furnished a remedy for, every man shall
continue to have a remedy for by due course of law. When this
Constitution was formed and adopted, it was and had been the
law of the land, from comparatively an early day, that a
person should have an action for damages against a county for
an injury caused by its act or omission. If this then known
and accustomed remedy can be taken away in the face of this
constitutional provision, what other may not? Can the
legislature, in some spasm of novel opinion, take away every
man's remedy for slander, assault and battery, or the
recovery of a debt? and, if it cannot do so in such cases,
why can it in this?"
From
the recent decision in West v. Jaloff, we quote as follows:
"It is contended that the clause in subdivision 21,
supra, which, after prescribing that ambulances, among other
vehicles mentioned, shall have the right of way under certain
conditions,
provides that 'this act shall not protect the driver of
any such vehicle from consequences resulting from the
arbitrary exercise of this right or for injuries willfully
inflicted,' restricts defendant's liability to these
causes, and, in effect, relieves him from liability for mere
common-law negligence. This construction takes
away from an injured person a good common-law remedy for a
private injury committed by a private citizen and gives him
an
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