Appeal from Circuit Court, Lane County. Helen J. Frye, Judge.
Paul D. Clayton, Eugene, argued the cause for appellant. With him on the brief were Luvaas, Cobb, Richards & Fraser, Eugene.
Richard Bryson, Eugene, argued the cause for respondents. With him on the brief were Calkins & Calkins, and Bryson & Robert, Eugene.
In this action for personal injuries, plaintiff's primary contention is that he was not a guest passenger of the defendant's driver at the time of the accident. A jury returned a verdict for defendant, and plaintiff appeals from the judgment.
Plaintiff and defendant Gary Patton, an employee of defendant Guaranty Chevrolet Co., lived in Eugene and were close friends. On the evening of October 8, 1970, Gary was directed by his employer
to drive a tow truck to Bend to pick up a vehicle at a wrecking yard. Gary, who planned to leave about 5:30 the next morning, called plaintiff and asked him to accompany him on the trip. Plaintiff agreed to go, provided he would be back by 2 p.m. to go to work. About 35 miles from Bend Gary slowed down for an approaching curve, the car went out of control, and plaintiff, who was asleep at the time, was thrown out of the car and seriously injured.
The trial court submitted the question of whether plaintiff was a "guest without payment" to the jury to decide as a question of fact. The plaintiff contends that the court erred in refusing an instruction to the effect that plaintiff was not a guest as a matter of law.
The statute ORS 30.115, relating to actions by guest passengers, states, in pertinent 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 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 his gross negligence or intoxication.
"(1) 'Payment' means a substantial benefit in a material or business sense conferred upon the owner or operator of the conveyance and which is a substantial motivating factor for the transportation, and ...