(dissenting) :
I am constrained to dissent because I do not think the guest-host relationship can he made out between Cox and Middleton. The guest statute was enacted to protect car owners and plane owners from suits by those who were riding for free and for their own business or pleasure. The relationship partakes more of a social nature than of business.1 Unless the element of “giving” a ride is involved, it is my understanding that the guest-host relationship is not established, and it is not necessary for the rider to pay money or property to the owner of the car or plane to make him a non-guest passenger.
For instance, in the case of Dorn v. Village of North Olmsted, 133 Ohio St. 375, 14 N.E.2d 11, the passenger rode for the purpose of pointing out a certain house to the driver, and it was held that he was no guest.
In another case a candidate for sheriff transported one of his supporters to a political rally, and it was held that the rider was not a guest.2 The court said it would make no difference whether the candidate invited the rider to go or whether the rider requested permission to go.
In O’Hagan v. Byron, 153 Pa.Super. 372, 33 A.2d 779 (1943), the plaintiff rode with her sister in order to give an opinion on the condition of the health of their brother, and it was held that she was not a guest.
The case of Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784 (1947), seems to be closely in point with the instant case. There the parties were employed by the same principal, to wit, a missionary society known as “The Plan.” As such employees it was their duty to attend and to report certain conferences. The defendant, Dobbs, was permitted but not compelled to' furnish the transportation, and if he did so, The Plan would pay the expenses if he transported another employee. If he did not transport another employee, he had to pay his own expenses. In holding that Su-gioka (Dobbs’ secretary) was not a guest, the court at page 786 said: “The conference at Casper was presumably of direct benefit to the Plan, hence to these parties as its employes. It follows that plaintiff was no guest.”
In the case of Scholz v. Leuer, 7 Wash. 2d 76, 109 P.2d 294 (1941), the defendant got consent of the mother of a 14-year-old girl to let her accompany him while he was. delivering papers, on the representation that he needed help because of unfamiliari*49ty with the route. The girl was killed, and in the case the court at page 300 said:
* * * I think it is very clear that she was not merely a guest, but she was a helper. She was doing a service which this young man desired to have her do, even though childlike she might have been ready and willing to get up at midnight and go on a not very exciting or exhilerating journey.
McGuire v. Armstrong, 268 Mich. 152, 255 N.W. 745 (1934), was a case where plaintiff’s wife was being transported by a county nurse to Grand Rapids for the purpose of having some glasses fitted after having had a cataract operation. Neither plaintiff nor his wife was paying for the ride nor for the operation. The nurse drove across the center of the highway in a foggy area, and plaintiff’s wife was killed. In affirming a judgment for the plaintiff the court at page 747 said:
The consideration need not pass from the passenger to the driver. If the driver receives a direct benefit from another, the service is not gratuitous and there is no guest relationship. Mrs. Armstrong admitted that it was her duty as a county nurse to bring patients to various clinics in Grand Rapids. It is reasonable to infer that the transportation of such passengers as the deceased was within the course of defendant’s employment. * * *
In the case now on appeal both Cox and Middleton were donating their time and services to the worthy purpose of attempting to locate a lost plane. Cox owned his own plane and was being reimbursed by C.A.P. for expenses incurred in connection with the flight. It is customary that “observers” be in each plane flown on such missions for the reason that the pilot must watch where he is going and keep within his allotted territory for the search. The purpose of taking his plane into the air was to locate a wrecked plane, and Middleton by his observation was contributing to the very purpose of the flight. I do not believe the court was justified in holding that the guest-host relationship was controlling.
As to the negligence of Cox, the contention is made that the motor was too small for the plane and that the wrong type of propeller was used. In addition to these specific allegations of negligence, the plaintiff also relied upon the doctrine of res ipsa loquitur.
It seems to me that a jury question is raised by the mere fact that Cox wrecked his plane on the top of a mountain. Ordinarily a plane does not crash in the absence of negligence — either in the way it is flown or in the failure to keep it in an air-worthy condition. Here Cox was in complete control of the plane, and it seems to me the rule of res ipsa loquitur would prevent a summary judgment for Cox. *50This belief is induced by the following statement taken from Prosser, Law of Torts, Hornbook Series (3rd Ed.), Sec. 39, beginning on page 220:
* * * The earlier cases dealing with aviation took the position that there was not yet such common knowledge and experience of its hazards as to permit such a conclusion from the unexplained crash of a plane. With rapid technological improvement, the position began to change; and all of the later cases now agree that the safety record justifies the application of res ipsa loquitur to such a crash, or even to the complete disappearance of a plane. * * *
The concurring opinion of the Chief Justice indicates that as a matter of law there is no negligence unless the pilot could or should have seen the very rock which ripped open the gas tank and caused the fire.
The very act of crash landing a plane would be negligence unless the crash landing was compelled by circumstances over which the pilot had no control. It is, therefore, necessary to look back of the crash landing to see if there was negligence on the part of the pilot which compelled him to attempt it.
I would reverse the case and remand it for trial. I think costs should be awarded to the plaintiff.
. Swinney v. Roler, 313 Ind.App. 367, 47 N.E.2d 846.
. Delk v. Young, 35 N.E.2d 969 (Ohio App.).