I am not in accord with the opinion of the majority because it seems to me too many assumptions are indulged in, which I do not believe warranted by the evidence or based upon matters within the province of the jury to find and decide. The court is reviewing the action of the trial court in sustaining a challenge to the sufficiency of the evidence at the close of appellant's case, and, hence, should be guided by the rules set forth inLindberg v. Steele, 5 Wash. 2d 54, 55, 104 P.2d 940, which are as follows:
"A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of the plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to plaintiff. [Citing cases.]
"In the determination of such challenge or motion, even though the plaintiff's evidence is in some respects unfavorable to her, she is not bound by the unfavorable portion of such evidence, but is entitled to have her case submitted to the jury on the basis of the evidence which is most favorable to her contention. [Citing cases.]"
The theory of the majority opinion, as I interpret it, is that respondent, the driver of the car, was under the influence of intoxicating liquor, or affected by the use of it, to such an extent as to make him unsafe to drive *Page 542 the car; that the appellant was cognizant of his condition; and that appellant therefore not only assumed all the risks attendant upon riding in an automobile driven by such a person, but also was guilty of contributory negligence as a matter of law by so doing. Also, that, when one once becomes a guest, he continues as such for the entire journey.
I am unable to find any evidence in the record which supports the assertion that the respondent was in any way under the influence of liquor. He and some of his friends had been drinking beer. The appellant had not drunk any intoxicant. It does not appear that the driver had consumed anything stronger than beer. No witness gave any testimony that he was in any way affected by the beer or that his ability to drive carefully was in any way impaired. The evidence as to the conduct of the driver was that he drove the car so fast — which, in the opinion of the witness testifying, amounted to recklessness — that the appellant became alarmed and requested him to stop the car and let her out, telling him that she was nervous because she had just gotten over the effects of an accident and she did not want to ride with him any farther.
It is stated in the majority opinion that there was no evidence submitted by the appellant that the driver had heard what she said, nor is there any from which an inference can be drawn to that effect. But it does appear that appellant was sitting on the lap of one of the other guests in the back seat, and she was directly behind the driver. It does not appear that there was any undue noise being made by the car that would prevent the driver hearing a statement made direct to him by a frightened person a few inches immediately behind him. I am unable to see why it is not reasonable to infer that the driver must have heard what she said to him. At least this is a factual question for the trier *Page 543 of fact to determine rather than the court. The majority further state:
"That the drinking of intoxicating liquor effectually destroys the faculties essential to safe driving is of such common knowledge that no one with sense will submit to the peril of riding with a driver who has recently consumed liquor. Anyone who submits to that peril assumes the risk attendant upon the journey and is guilty of contributory negligence which precludes recovery."
As to whether a person who has consumed intoxicating liquor (in this case beer) shortly prior to driving a car is unfit to do so safely, depends not only upon the person, but also upon the amount and potency of the intoxicant consumed. The evidence does not disclose that the driver was affected by the beer he drank, unless it be inferred that he was affected because he drove fast. I do not think this conclusion follows. Many drivers — entirely too many — drive too fast and to the point of being reckless in the opinion of others, and it is not attributed to them that they are affected by an intoxicant. Many drivers consume intoxicants and drive their cars safely, and it is too much to say that inability to drive safely follows consumption of intoxicants as a matter of course. If so, many guests would not hazard rides from social functions, and they would hesitate, if they did, to feel that they were assuming any risks or were guilty of contributory negligence.
The case of Archer v. Bourne, 222 Ky. 268, 300 S.W. 604, and several others are cited as establishing the rule to be applied in this case and to warrant the conclusion that the appellant, by becoming a guest of the respondent, was guilty of contributory negligence as a matter of law. An examination of these cases will show that, while the facts justified the conclusions reached, they are so essentially different from those we have before us as to make them clearly inapplicable. *Page 544
In all of them but the last two cited, the drivers of the cars, either prior to the journeys or during the same, or both, consumed substantial quantities of strong liquor and became very visibly affected thereby, all to the knowledge of the guests, who, in some instances, participated in the drinking and who at no time made any effort to sever the host-guest relationships. The last two cases cited do not involve intoxicants. In one of them, a daughter rode with her mother, who drove the car. The mother was very near-sighted and unfit to drive, and the daughter knew of this condition. In the other case, the driver, who had driven Ford cars, acquired a new car of another make. While he was learning to drive the new one, the plaintiff, knowing of his inexperience, accompanied him. In the Utah case, it was held that the daughter was guilty of contributory negligence in knowingly riding with an incompetent driver; and, in the Wisconsin case, the court applied its doctrine of assumption of risk rather than that of contributory negligence.
The question involved in this case is whether the relationship of host and guest can be terminated by the guest during an automobile journey, and, if so, did the acts of the appellant constitute a termination or make it a question for the jury that it was terminated so that Rem. Rev. Stat., Vol. 7A, § 6360-121, no longer applied. It does not appear that this precise question had ever been considered by this court before the present case was brought here.
The case of Parker v. Taylor, 196 Wash. 22, 81 P.2d 806, is cited in the majority opinion. All that was decided by that case was that a guest assumes the risk of all injuries, except those intentionally caused by the owner or driver of the automobile. There was no question of termination of the host-guest relationship decided. The other Washington cases cited immediately *Page 545 following the Parker case were all based upon situations which arose before the host-guest statute became effective. In none of them was the question of termination of a host-guest relationship involved, but only the question of protests made on the part of guests as bearing upon the question of contributory negligence of the guests in riding with negligent drivers.
The only case which has been called to our attention involving the question before us is Blanchard v. Ogletree, 41 Ga. App. 4,152 S.E. 116. There it was held that a guest may terminate the host-guest relationship the court stating, p. 5:
"The rule [gross negligence as between host driver and guest passenger] set forth in the foregoing division of the syllabus should not apply, however, where there was what amounted to a change in the legal relationship of the parties by reason of a request made by the passenger to be permitted to leave the car prior to the accident, and the continuance of the passenger in the car was occasioned by the refusal of the driver to accede to the request."
The majority opinion states:
"When appellant accepted a ride with respondent, she became a guest for the entire journey. To hold otherwise would nullify the plain wording and intent of the host-guest statute."
According to this rule, a guest would be unable to terminate the host-guest relationship during a journey, no matter how carelessly or recklessly the host might drive the automobile in which they were riding. This is not only a dangerous rule from the standpoint of the guest, but it is also not in accord with the concept of host-guest relationship. This relationship is not contractual.
The term "guest" is defined as "a visitor entertained without pay; hence, a person to whom the hospitality *Page 546 of a home, club, etc., is extended," by Webster's New International Dictionary (2nd ed.). A guest is merely the recipient of the voluntary hospitality of the host. If a host takes a guest on an automobile trip, he can terminate the relationship at will and require the guest to leave the automobile at any time. The guest does not obligate himself to go the entire contemplated journey with the host. He can demand that the host stop and permit him to leave the automobile. In either case, the host-guest relationship is thereby terminated. If the host refuses to stop the automobile, the guest does not have to imperil himself by jumping out in order to terminate the relationship. It is illogical to say that, if a guest could terminate the relationship of host and guest during a journey, this would nullify the plain wording and intent of the host-guest statute. This statute fixes the liability of the host while one is his guest, but it does not go beyond that. If we are to adopt the rule announced in the majority opinion, then the guest must sit idly by and submit to the hazard of injury or death until the driver voluntarily releases him. Grave consequences will follow the adoption of any such rule of law.
It may be conceded that the mere making of a protest by a guest to the host that he is driving in a negligent or reckless manner and that there is danger of an accident, is not sufficient to terminate the relationship, but we are not now called upon to decide that question. The nature and character of the protest might be such as to indicate to the host that the guest demanded an immediate termination of the relationship, so it might be a mixed question of law and fact as to whether there was such a termination. But, as applied to this case, I am of the opinion that, when the appellant not only protested to the respondent as to his method of driving, but also demanded that he stop the car and *Page 547 let her out, then it became the duty of respondent to act upon the demand with reasonable promptness under the attendant circumstances; and, if he failed or refused to do so, the host-guest relationship was terminated, and it was his duty from then on to exercise reasonable care for the safety of the appellant. There is evidence in the record to the effect that the accident occurred three miles from the starting point and that the demand was made after the car had traveled about two miles, thus enabling a trier of fact to say that the driver had sufficient time within which to comply with the demand to stop the car and let the appellant alight therefrom.
Viewing the situation in the light demanded by the rules adopted by this court, the appellant was entitled to have her case submitted to the jury so that it could determine from the evidence whether the host-guest relationship was terminated, and, if so, whether the respondent was thereafter negligent and thereby was the cause of the injuries which the appellant sustained. The judgment should be reversed and the case remanded for a new trial.
BLAKE and MALLERY, JJ., concur with GRADY, J. *Page 548