Jewett v. Kosydar , 266 Or. 258 ( 1973 )

O’CONNELL, C.J.

This is an action to recover damages for personal injuries suffered by plaintiff when defendant’s automobile ran over plaintiff’s leg. Defendant demurred to plaintiff’s complaint which was sustained and plaintiff appeals.

Plaintiff’s complaint alleged in part as follows:

“II.

“That on or about the 6th day of April, 1972, at about the hour of 10:00 P.M. the Plaintiff was standing at the side of the automobile owned by Defendant, which was parked in the backyard of the residence of one Lou Chartrey, in Toledo, Lincoln County, Oregon, and Plaintiff was about to enter Defendant’s automobile and had put one foot into the Defendant’s automobile; that the Defendant abruptly moved the automobile which she was operating, and the Plaintiff’s leg was jerked so that she was pulled under the Defendant’s automobile and the wheel of said automobile ran over the Plaintiff’s leg, causing the Plaintiff injuries as hereinafter more specifically set forth.”

It is assumed by the parties that plaintiff’s complaint was vulnerable to a demurrer if, on the facts pleaded, plaintiff was a guest within the meaning of OES 30.115. OES 30.115 provides as follows:

“No person transported by the owner or operator of a motor vehicle, an aircraft, a watercraft, or other means of conveyance, as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by Ms gross negligence or intoxication. * * *” (Emphasis supplied.)

It is plaintiff’s position that she was not a guest because she was not being transported at the time of the injury. In some states statutes similar to OES 30.115 have received the construction urged by plaintiff.^① On the other hand, some courts have interpreted their guest statutes as including in the category of “guests” persons entering or leaving a vehicle in which they have been invited to ride.^②

Our choice between these two interpretations involves us again in the task of marking out on a continuum the point at which we think that a factual situation falls within or outside the policy of the statute. It is evident from the cases first mentioned that these courts, looking unfavorably upon the guest statutes, construe them to apply to the smallest possible number of persons. Plaintiff argues, in effect, that we should adopt this same approach. We think, however, that to make the coverage of the statute turn on whether the invitee was wholly within the vehicle and whether the vehicle had been set in motion to begin the journey, would be to give the statute an artificial interpretation without any inquiry as to the policy which the statute purports to serve. That policy is said to be the avoidance of collusive suits and the protection from liability of one who, in a spirit of hospitality, offers transportation to another.^③

This being the policy which we shall assume prompted the legislature to limit actions against the host driver, the policy in our opinion would come into play at the point when the host begins performance of the gratuitous undertaking. In the present case the performance of the undertaking was in progress when plaintiff was injured. Therefore she was a guest and is precluded from recovery under the statute.

If this seems to be a harsh result, the remedy for perpetuating the hardship on other guests in the future is to modify or repeal OES 80.115.

The judgment is affirmed.

① Smith v. Pope, 53 Cal App2d 43, 127 P2d 292 (1942); Chapman v. Parker, 203 Kan 440, 454 P2d 506 (1969); McCann v. Terhune, 12 Mich App 364, 162 NW2d 906 (1968); Economou v. Anderson, 4 Ohio App2d 1, 211 NE2d 82 (1965); Colin v. Rogers, 5 Wash App 113, 486 P2d 1101 (1971).

② Dunakin v. Thomas, 141 F Supp 377 (D.C. NM 1956); Kaplan v. Taub, 104 So2d 882 (Fla App 1958); Rainsbarger v. Shepherd, 254 Iowa 486, 118 NW2d 41, 1 ALR3d 1074 (1962); Head v. Morton, 302 Mass 273, 19 NE2d 22 (1939).

③ See Spring v. Liles, 236 Or 140, 147-48, 387 P2d 578 (1963).