(dissenting).
This is an appeal from a summary judgment, on motion by both parties, based on *112interrogatories and 'plaintiff’s deposition.1 •The court concluded that (1) plaintiff was not negligent, (2) that defendant was, (3) 'that the guest statute was inapplicable and ' (4) that the question of ' damages only would be put to the jury.
Plaintiff’s son had married defendant’s daughter. Everybody was friendly.. Defendant, on occasion would take plaintiff, age 74, to dinner in the former’s car. On the trip, subject of this suit, they had returned to plaintiff’s home, and talked for 5 minutes or so, while parked on the sandy, muddy shoulder of the road in front of .plaintiff’s home. Defendant left her car in. gear, with the motor running, after applying the hand brake which held the car in place for a time. Defendant got out of the driver’s side to go around and help .plaintiff alight, and the latter opened the right door and started to get out herself. She had one foot out and one foot in, but did not remember if her foot had or had not touched the ground when the car .started to move. The car moved 40 or SO feet and collided with another parked car, during which time plaintiff fell out and sustained the injuries about which.she complains.
Defendant, who appealed, cites cases in urging that the guest statute precluded recovery. One had to do with a Massachusetts case where there was no statute, but only the common law involved. The others, except for a Kansas case, had to do with a guest statute but each was decided, not by a state Supreme Court, but by a lesser intermediate appellate tribunal, — each persuasive in a sense, but factually different and not dispositive or of impressive magnitude of the matter in this court.
On the other hand, our guest statute was taken verbatim from the then subsisting California statute, under which the case of Prager v. Isreal,2 was decided by the Supreme Court of California. This case is strikingly similar to the instant case, and factually was dissimilar only in that it was conceded that the woman in that case had .touched her foot on the ground while alighting when the car, parked on the shoulder of the road, as here, started moving.
Although we are not bound by that case, we pay deference to the oft-repeated observation that where our state adopted, the statute of a sister state which is interpreted by the highest court of the latter, other *113things being equal, we will consider seriously the' pronouncement of that court in interpreting our identical statute.
In the case before us, lacking any authority of the same stature, and considering what makes statutory construction sense, I would accept the Prager case as a precedent justifying the position of plaintiff and the trial court here, so far as the guest statute problem is concerned.
The argument that the California Supreme Court’s decision in the Prager case is unimpressive because it had not been decided at the time we adopted our guest statute, to me is unimpressive. The main opinion forgets to point out that although the California court decided the Prager case about four years after the accident happened, it interpreted a statute existing at the time of the accident,- — a statute which between the time of the accident and the decision, this state adopted lock, stock and barrel right down to the last comma, period and semicol&n — which, since 1935, Utah’s legislature has not deemed advisable to amend.
The main opinion’s judicial souffle that in the Prager case the litigants took an hour to eat lunch représents a difference between the facts in this case, where the litigants sat talking for five minutes, is a judicial salad unpalatable to this writer for lack of seasoning. The observation of the main opinion that in the Prager case the back seat of a car could be considered as a lunch room, is as naive as if I suggested that in the instant case the front seat was a civic auditorium for discussing the Viet Nam conundrum, or a library for reading the Salt Lake Tribune.
The trial court should be affirmed.
. Defendant’s counsel had filed a written • motion for summary judgment confined to the sole defense that under the facts plaintiff, as a guest, was precluded from asserting a claim because she did not show any wilful misconduct on the part of the defendant (Title 49-9-1, Utah Code Annotated 1953). Nonetheless the Court’s pre-trial order recited that “both parties made a motion for summary judgment,” without restriction as to any particular issue. No one made any objection to the order, which implies that everyone submitted the matter on the facts and the merits.
. 15 Cal.2d 89, 98 P.2d 729.