A primary policy underlying these statutes is to prevent recovery for ordinary negligence by a guest in an automobile who has accepted the hospitality of the owner or driver. (See Crawford v. Foster, 110 Cal.App. 81, 87 [ 293 P. 841]; Rocha v. Hulen, 6 Cal.App.2d 245, 251 [ 44 P.2d 478]; Carey v. Cityof Oakland, 44 Cal.App.2d 503, 507-508 [ 112 P.2d 714]; Albrecht v. Safeway Stores (1938), 159 Or. 331 [ 80 P.2d 62, 65]; 26 Cal.L.Rev. (1938), 251, 252; 29 Corn.L.Q. (1943), 87, 90-91.) [10] The statute was not designed to bar recovery where, as here, the driver, rather than the person transported, benefited from the trip.
It is sufficient if the presence of the occupant directly compensates the operator or owner in a substantial and material or business sense, as distinguished from mere social benefit or nominal or incidental contribution to expenses. Such is the construction which the courts in other jurisdictions have generally given to host and guest statutes substantially similar to the Washington statute. Sumner v. Edmunds, 130 Cal.App. 770, 21 P.2d 159; McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Russell v. Parlee, 115 Conn. 687, 163 A. 404; Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147; Thomas v. Currier Lumber Co., 283 Mich. 134, 277 N.W. 857; Haas v. Bates, 150 Ore. 592, 47 P.2d 243; Albrecht v. Safeway Stores, 159 Ore. 331, 80 P.2d 62. This court held in Dahl v. Moore, 161 Wn. 503, 297 P. 218, and Hart v. Hogan, 173 Wn. 598, 24 P.2d 99, where the gross negligence rule was involved, that a rider in an automobile was not a guest if his carriage conferred a tangible benefit on the driver and operated to their mutual advantage.
See also Kaufman v. Fisher, 230 Or. 626, 371 P.2d 948 (1962) (applying ORS 30.110). The court had also previously held in Albrecht v. Safeway Stores, Inc., 159 Or. 331, 340, 80 P.2d 62 (1938), that "It is not necessary to prove a legal contractual obligation." To the same effect, see Steenson v. Robinson, 236 Or. 414, 423, 385 P.2d 738, 389 P.2d 27 (1964).
We note that certain jurisdictions consider the existence of a formal agreement between the parties as a factor to be considered when determining whether an individual is a "guest" or "paying passenger." However we prefer to adhere to the rule enunciated by the Oregon Supreme Court in Albrecht v. Safeway Stores, Inc., 159 Or. 331, 80 P.2d 62 (1938). Fountain v. Tidwell, 92 Ga. App. 199, 88 S.E.2d 486 (1955).
Under such state of the record it is not for this court to substitute its judgment for that of the jury." Albrecht v. Safeway Stores, Inc., 159 Or. 331, 340, 80 P.2d 62, 66. The foregoing observations are sound. Certainly the presence of a helper, in the event of need, could be found to be a definite and tangible benefit under the weather conditions shown here.
The defendant felt that he could drive to Fargo, North Dakota, before stopping. In the case of Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62, 66, the court said: "Under ordinary circumstances the status of guest would not be changed merely by reason of the fact that such person, at the request of the operator of a motor vehicle, did part of the driving.
Damages claimed include special, compensatory and punitive damages. We construe the second cause of action, which incorporates by reference the first cause of action, as being a claim against both Wackenhut and Industrial Indemnity for wrongful issuance of an injunction, (see Albrecht v. Safeway Stores, Inc., 159 Or. 331, 80 P.2d 62 (1938)), with respect to which, if Oregon law is applicable, it is no defense that the injunction was sought in good faith and with sufficient cause if it is ultimately determined that the party who obtained the preliminary injunction was not entitled to a permanent injunction. See Pearson v. Sigmund, 263 Or. 626, 503 P.2d 702 (1972).
The Kansas Supreme Court has not determined that question under facts similar to these. Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62, 63, cited with approval by the Kansas Supreme Court, see Sparks v. Getz, 170 Kan. 287, 225 P.2d 106, and LeClair v. Hubert, 152 Kan. 706, 107 P.2d 703, gives substantial support to the position that to be a compensating guest under a guest statute like that of Kansas one need not show express authority in the agent of an employer to take the passenger on the mission, or that the passenger is in a formal sense an agent or employee of the driver's employer. But we are not in agreement on the question of what legal status the Kansas courts would give Mrs. Jones on the facts before us. And we have concluded that the answer to another question is decisive of this appeal. Hence we do not undertake to pass upon the question of whether Mrs. Jones should be held to be a compensating passenger or a guest only, under the Kansas guest statute.
General's position, on the other hand, is that whether it, as an insurer, was under a duty to defend an action for damages, was governed by the allegations of the complaint in the action; that since the complaint filed by Perton alleged that he was at the time of the injury in the employment of Journal, it followed that the obligation to defend did not arise, and that the fact that whether Perton was or was not such an employee is not an issue in this case and is wholly immaterial. In reply to that contention Journal says that an allegation such as this which is ascertainably false should not in logic or in justice afford the insurer a basis to escape liability. It argues that proof of the employment was not essential to recovery; that although the Oregon Guest statute, ยง 115-1001, O.C.L.A., requires a guest to prove "gross negligence or intoxication or his reckless disregard of the rights of others", yet under the doctrine of Albrecht v. Safeway Stores, 159 Or. 331, 80 P.2d 62, Perton may have made out a case on the basis of ordinary negligence by showing that his transportation was of incidental benefit to Journal even though he was not an employee. Upon considering these conflicting views of the parties, the trial court, it is evident, adopted General's theory. It did not make any finding as to whether Perton was or was not an employee.
Cases from other states appear also to lend support to our views. As the court stated, in considering the application of the gross-negligence doctrine, in Albrecht v. Safeway Stores, Inc., 1938, 159 Or. 331, 80 P.2d 62, 66, 67: "Under ordinary circumstances the status of a guest would not be changed merely by reason of the fact that such person, at the request of the operator of a motor vehicle, did part of the driving. Such benefit would be too trivial or inconsequential to change the relationship of the parties.