I dissent from the opinion of the majority and vote to affirm the judgment and order under review.
The facts are not in dispute. The sole question for determination is what was plaintiff’s status while riding in defendant’s car. In his opinion Justice Bliss has quoted a portion of chapter 195 of the Laws of 1931 of the State of Montana. The construction of that statute is for the court. Formerly there was some controversy whether the proof of foreign law should be addressed to the court or to the jury. What the foreign law was, generally speaking, was denominated a question of fact except that it became a question of law when it merely involved the construction of a written statute or the interpretation of judicial opinions. Today the old rule is abrogated. Section 391 of the Civil Practice Act, as amended by chapter 690 of the Laws of 1933, expressly provides that foreign law is to be determined by the court. This amendment withdraws the meaning of foreign law from the consideration of the jury and imposes upon trial and appellate courts the task not only of construing the foreign law, but also of deciding questions of fact as to its scope and existence. No longer must we resort to the testimony of expert witnesses to decide what foreign law is. We investigate and make our own determination. Likewise, we need no interpreter; we interpret for ourselves.
The statute which we are construing only purports to release “ owners and operators of motor vehicles from responsibility for damages or injuries to gratuitous passengers.” It seems to me that on the facts in this case plaintiff cannot be classed as a gratuitous passenger. Defendant, a teacher in a public school at Whitehall, was desirous of crossing the continent by automobile during her summer vacation in 1935. She was unable or unwilling to defray the entire expense of the journey. She suggested to plaintiff and the other two young women, all teachers in the same school, that they participate in the venture. Plans were made and agreed upon for a trip to the Pacific coast and return. Before commencing the journey, and as a condition precedent, each contributed the sum of *630fifty dollars for the purpose of defraying the expenses of gas, tires, oil and incidentals in connection with the operation of the car. The car was repaired out of this fund. In addition to that each contributed the sum of ten dollars and fifty cents for the purpose of procuring liability insurance to cover the operation of the machine. The young women selected their itinerary and shared the expenses of the trip; each had an equal voice in the route to be followed and the details of the journey. In consideration of the contributions of her companions, defendant agreed to transport them from Whitehall to California and return. Obviously, these contributions made possible the journey which defendant desired. Plaintiff and her companions were engaged in a common enterprise for their mutual entertainment and gratification. Plaintiff paid the amount which defendant demanded as a condition for her participation in the venture. True, the amount was not large; however, it was the sum which the defendant asked. Surely she was not riding as a “ guest or by invitation,” within the meaning of the Montana statute. When the Legislature used the words “ riding * * * as a guest or by invitation and not for hire,” it did not intend to include persons who were being transported for the mutual benefit of the passenger and owner. The language used is not susceptible of that interpretation without resorting to a subtle and forced construction for the purpose of extending its meaning. In the quest to ascertain whether or not there are reciprocal advantages, not only the fact of transportation must be considered, but also the contract to which it is an incident. Plaintiff had rights, liabilities and a status wholly different from that of a gratuitous passenger. The relationship between defendant and her companions was contractual; the parties were joint adventurers. In accordance with their plans these young women traveled to the Pacific coast, and on the return trip, while defendant was operating her car through the State of Montana, plaintiff was somewhat seriously injured. A jury has found upon sufficient evidence that those injuries were the result of defendant’s negligent operation of her automobile.
In this State we have no statute similar to the Montana legislation under consideration. Under our law a guest in an automobile who is injured may recover damages from a negligent operator. The Montana statute is in derogation of the common law, and hence is to be strictly construed. When a statute which is evidently intended to make an innovation upon the common law is susceptible of more than one construction it is not to be construed as altering the common law further than the language of the statute clearly and necessarily requires. In construing the statute before us the words used should be given their ordinary, popular meaning. *631Hence we have a clear legislative declaration that this statute only exonerates owners and operators from liability for ordinary negligence to “ gratuitous passengers.” To place plaintiff in that category is to ignore the facts.
Defendant is relying on Master v. Horowitz (237 App. Div. 237; affd., 262 N. Y. 609) and Olefsky v. Ludwig (242 App. Div. 637) as a bar to the maintenance of this action. These cases have no application to the question before us. The facts are entirely different. They arose in Connecticut and were tried in this State as a forum according to the law of Connecticut as interpreted by the decisions of the highest court of that State. These authorities do not establish the law of the State of New York on this subject. They merely interpret the Connecticut statute in accordance with the decisions of that State. The construction placed upon a statute of another State by the courts of that State is, as a general rule, controlling, and will be followed by the courts of this State. (Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48.) This rule rests upon the principle of comity.
Crapser, J., concurs.
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs.