Stewart v. Houk

• Decision Date: 27 November 1928
• Citation: Stewart v. Houk, 127 Or. 589, 271 P. 998 (Or. 1928)
• Parties: STEWART v. HOUK ET AL.
• Court: Oregon Supreme Court

271 P. 998

127 Or. 589

STEWART v. HOUK ET AL.

Supreme Court of Oregon, En Bank.

November 27, 1928

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.

Davis &amp Harris, of Portland, for appellant.

E. L McDougal, of Portland, for respondents.

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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