ON THE MERITS
*419Robert Mix, Corvallis, argued the cause and filed briefs for appellant. Karl Huston, Corvallis, argued the cause and filed a brief for respondent. Before McAllister, Chief Justice, and Rossman, Perry, O’Connell, Goodwin, Denecke and Lusk, Justices. GOODWIN, J.This is ah action for damages arising out of an automobile collision. Plaintiff appeals from a judgment for the defendant.
Plaintiff has brought up neither a transcript nor a proper designation of portions thereof. (A partial transcript was filed in connection with the earliér motion to dismiss the appeal, but it was not made- a part of the . record pursuant to ORS 19.074.) We *420have only the trial court file. ORS 19.114 provides that a transcript (defined in ORS 19.005) will take the place of the constitution’s “bill of exceptions,” required under former practice. In the absence of a transcript, or designated portions of the record brought up pursuant to ORS 19.074, there is nothing before us except the question whether the pleadings support the judgment. Dressler v. Isaacs et al., 218 Or 128, 323 P2d 64 (1958).
If the judgment were simply a judgment for the defendant entered upon the allowance by the trial court of the defendant’s motion for a nonsuit, our consideration of this appeal would be at an end. It is impossible to rule upon the correctness of the ordinary involuntary nonsuit without a transcript of the material evidence. The judgment appealed from in this case, however, is not an ordinary judgment given upon an involuntary nonsuit. It reads in material parts as follows:
“* * * the defendant Robinson having moved for an order of involuntary nonsuit on the grounds that the pleadings established that the plaintiff was a guest passenger in the automobile driven by said defendant Robinson at the time of the accident alleged in the Second Amended Complaint filed herein and that said Complaint only charged the said defendant Robinson with ordinary negligence and, therefore, failed to state facts sufficient to constitute a cause • ■ •of action against said defendant Robinson *. *
Since the defendant asked the trial court to decide the case upon the pleadings, rather than upon the testimony, we will treat the judgment as a judgment on the pleadings. ■
In examining the pleadings to see1 whether they *421support the judgment, we begin with the second amended complaint. Paragraph II thereof reads as follows:
“That on the 12th day of May, 1961, defendant Thomas V. Eobinson arranged to drive a certain Chevrolet tudor hardtop sedan, bearing Oregon license No. IV5907, from Corvallis to Eugene, Oregon, and return, and to carry as a passenger therein plaintiff Brian Steenson, said defendant to exercise control thereof. That prior to the commencement of said trip, an arrangement was made between plaintiff and defendant Thomas V. Eobinson under which plaintiff was to pay to defendant Thomas V. Eobinson the sum of $1.00 for such transp ortation. ”
There follow the usual allegations of negligence and injury with a prayer for judgment. There is no allegation of gross negligence.
In due course the defendant filed an answer, containing a further and separate answer and defense of which paragraph III alleges:
“That the defendant Thomas V. Eobinson [a minor] by his guardian ad litem Gerald S. Eobinson, denies and disaffirms any arrangement or agreement on the part of the defendant Thomas V. Eobinson to transport the plaintiff Brian Steenson from Corvallis to Eugene, Oregon and return on the 12th day of May, 1961, for the sum of One Dollar ($1.00) or for any other consideration * *
To this affirmative defense the plaintiff interposed a demurrer, arguing that the right of an infant to avoid his contracts has nothing to do with the plaintiff’s status as a paying passenger under the Oregon guest statute. OES 30.115. The trial court overruled the demurrer. (This ruling is the only assignment of error briefed and argued by the parties.)
*422 The plaintiff filed a reply which traversed all the affirmative allegations of the answer. The right to challenge the ruling on the demurrer is not waived by pleading over, but is saved by OES 16.330. We construe the statute as extending to demurrers by plaintiffs the same protection it gives demurrers by defendants.
The judgment recites that there was a partial trial and a motion by the defendant for a judgment of involuntary nonsuit “on the grounds that the pleadings established” that the plaintiff was not entitled to recover.
The pleadings could have established that the plaintiff was not entitled to recover if, but only if, the trial court was right in holding that a minor can disaffirm a paying-passenger arrangement after there has been an accident. If the trial court was right on this issue, then the defendant might have been entitled to a judgment on the pleadings had the pleadings been stripped down to that single issue. The pleadings, however, put in issue the fact of the alleged disaffirmance as well as the legal efficacy thereof. Since unresolved issues of fact remained after the pléadings were settled, there could be no judgment on the pleadings.
Since the cause must be reversed and remanded, and since the only issue the parties discussed in their briefs and arguments centered about the above-mentioned assignment of error, we will treat the question as if it were properly before the court upon a record containing a fuller description of proceedings below.
The’ trial court relied upon Brown v. Wood, 293 *423Mich 148, 291 NW 255, 127 ALR 1436 (1940). Defendant asks this court to approve that decision and to hold that in Oregon an infant may engage to transport a passenger for hire and then,- after an accident, disaffirm his engagement and stand upon his right to avoid contracts as a method of avoiding tort liability. This we decline to do.
The Michigan court seemed to think that the tort (negligent operation of a motor vehicle) was a breach of a contract of carriage and therefore the tort somehow arose out of a contract. This reasoning breaks down when applied to other tort law. Thus, where an infant is sued for seduction under promise to marry, he cannot escape tort liability by pleading his incapacity to contract. Becker v. Mason, 93 Mich 336, 53 NW 361 (1892). Tort liability arises out of his capacity to seduce rather than his capacity to contract.
Whether or not an infant passenger can avoid his promise to pay a carrier for transportation, or an infant carrier can avoid a promise to transport, once the carrier-passenger relationship comes into being the carrier owes a duty to exercise due care. The status of the parties exists quite apart from the enforceability of their contracts.
At one time this court was of the opinion that “payment” to take a passenger out of the operation of the guest statute had to be by a contract enforceable at law. Smith v. Laflar, 137 Or 230, 2 P2d 18 (1931). The case was overruled in Luebke v. Hawthorne et al, 183 Or 362, 367, 192 P2d 990 (1948).
One purpose of the guest statute is to free from the legal consequences of his ordinary negligence a motor-vehicle operator who has extended hospitality *424to a nonpaying passenger. There is no reason to believe that the legislature intended to relieve of the duty of exercising due care those who transport others for hire.
If the relationship of carrier and passenger is established, it should make no difference whether the payment was received or merely promised. It is likewise immaterial whether the promise, if any, could be enforced in a court of law. Since there must be another trial, we express no opinion upon the facts concerning the alleged payment arrangement in the case at bar. We likewise reserve the question of the effect to be given the evidence of such arrangement, if any, by the court or jury.
There was in the oral argument an oblique reference to collusion as a possible reason for viewing with disfavor a guest-passenger as a plaintiff. If collusion is present in a given case, then it ought to be brought out in the open and dealt with at the trial just as any other matter of fact. The perjury statutes are still on the books. If the problem is not involved in a particular case, there is no reason why the court should generalize about it.
The cause is remanded with instructions to sustain the demurrer to the further and separate answer alleging disaffirmance of the “arrangement or agreement.” The parties should be required to plead over so that the case can be tried on the numerous .questions of fact that will remain.
^Reversed and remanded.