(dissenting).
The majority concludes that because the complaint “stated an action of common law negligence” and that the “facts established defendant was guilty of common law negligence” it becomes unneces*736sary to pass upon defendant’s contention that the trial court erred in finding plaintiff was not a guest at the time of the accident. I do not agree.
The majority opinion recognizes that as to substantive matters the law of Indiana is to be applied in this case. By its statute1 Indiana has established the substantive rule of law that the operator of a motor vehicle is not liable to a nonpaying guest for injury resulting from operation of the vehicle unless the injury is caused by the wanton or wilful misconduct of the operator. And, in the instant case the trial court specifically found that “[djefendant’s conduct in driving his automobile immediately prior to the accident was not wanton or wilful”. Thus, the trial court’s ultimate conclusion of liability, implicit in the judgment for the plaintiff, can be sustained only if its conclusion that plaintiff was not a non-paying guest is not clearly erroneous.
The trial court made a finding, supported by the testimony, that:
“Plaintiff desired to go where his automobile was located and asked defendant if he would take him. Defendant said that he would. Plaintiff thereupon said to defendant that he ‘would put a dollar’s worth of gas’ in defendant’s car. Defendant drove his automobile to the gasoline pump at Mac’s Service Station and a dollar’s worth of gas was placed in the ear. Plaintiff paid for the gasoline”.
There is nothing to show that the motivating reason or purpose which induced the trip was the offer to contribute the gasoline — an offer made and accepted after defendant said he would take plaintiff to his car.
The fact that after defendant had already agreed to take plaintiff to where plaintiff wanted to go defendant accepted plaintiff’s subsequent offer to put a dollar’s worth of gasoline in defendant’s car is not, in my opinion, sufficient to establish that plaintiff became a paying-passenger not subject to the rule of non-liability imposed by the Indiana statute. Allison v. Ely, Ind.1960, 170 N.E.2d 371.
Nor, in my opinion, was plaintiff’s nonpaying guest status terminated by his action of lying down in the back seat and covering his head with his hands as a protective measure against what he believed was an impending accident.
I am of the view that the District Court’s conclusion that plaintiff “was not a guest at the time of the accident within the meaning of § 47-1021” is, on the record before us, clearly erroneous. Negligence is therefore insufficient to support liability. I- would reverse.
. Indiana Guest Statute, Burns’ Indiana Statutes Annotated, 1952 Replacement, § 47-1021.