dissenting.
For reasons not material, I did not participate in the case of Williamson v. McKenna, decided June 22, 1960, 223 Or 366, 354 P2d 56, so I could not express my basic difference with that opinion. In the instant case the majority now apply the Williamson opinion. Since I disagree with the result reached in this case, as well as the opinion in the Williamson case, I take this opportunity to express my reasons therefor. In this opinion when I refer to the “majority” it will be in reference to the Williamson opinion unless otherwise specified.
The opinion filed by Justice O’Connell reflects the exhaustive research and effort with which the opinion was written. I have no desire to criticize the result of that fine scholarship. Bather, my difference is in the judicial philosophy to be applied to the singular problems presented by the guest cases. I would not attempt to re-define gross negligence, etc. *211Instead, I want to direct attention to the idea that the statute is now so unworkable that we should consider overruling Perozzi v. Ganiere, 1935, 149 Or 330, 40 P2d 1009. If that cannot be judically accomplished, then I believe the guest cases in particular are best left to the jury. It requires only brief exposition to discuss my philosophy in regard to “judge and jury” so I will turn to it first.
The difference I have with the majority on the function of the jury has been earlier expressed by others far wiser than I. It can best be illustrated by drawing the readers’ attention to a small part of the comments found at 2 Harper and James, Torts, pp 971-972, on the function of the court in negligence cases. Irrelevant footnotes have been omitted.
“* * * there has been a substantial school of thought in tort law which favors the progressive working out of detailed minimum and maximum standards of conduct as situations continue to recur and become crystallized. This is to be done by the court out of judicial notions of what is proper.② The chief exponent of this position was Mr. Justice Homes [sic].③ The argument for it is that the *212greater experience and acumen of the judge' give him a sounder, basis than a jury has for determining what should'be done and, further, that if men are told in advance, just what they may and may not do, the inhibiting' fear of uncertainty will be removed as a stumbling block in the way of desirable affirmative activity. Moreover, moral fault is clearer when there has been disobedience to a definite instruction than where a man has been told simply to use his judgment at peril that some jury will later agree that he -did so wisely. It is apparent that these reasons are- bound up with the fault principle and the desire to refine it, and with notions of expediency associated with laiszez faire. But, as we have seen, the setting of specific standards tends by and large to restrict accident liability and, therefore, to work against the compensation of accident victims. It is small wonder, then, that Holmes’ view has never become widely accepted by the courts and has lost ground in recent years.
Gauged by the rapid expansion, almost explosion, of the automobile negligence law since Cooley and Holmes were on stage, the diverse philosophies they expressed are almost of ancient origin. The divergence of view is, however, as fully alive today. Further exploration into the vast literature upon this subject would waste the time of both the writer and the reader. Reference to 2 Harper and James, at p 889 et seq. provides analysis of and citation to some of the comprehensive works on the subject.
The majority now choose to follow the arrow erected by Holmes. History indicates that when the courts adopt more particularized standards, the more limited *213has been the function of the jury. I fear that time will reveal that, despite the consecrated exertions of Justice O’Connell, to devise a template with which to test the facts in a guest case, this court will continue to weigh the facts as a jury. New words have been applied to the situation but the result will be the same. I can best express my disagreement by saying I am of the firm opinion that the philosophy of Justice Cooley will more often provide essential justice.
This is particularly true when we recognize, as the majority acknowledge, that trial courts have formulated instructions in the guest cases which have left little doubt in most jurors’ minds as to the burden a plaintiff must sustain. And the trial judge has not only heard the evidence, but has observed the witnesses — an advantage we elsewhere consider. Accordingly, it should be an exceptional case indeed when this court will review the finding of both the trial judge and the jury.
My second objection to the Williamson opinion requires more detailed explanation. When the court undertook to again define the language of the statute we should have gone to the very root of the problem it has created. Most of the 27 state courts (see Note, 34 Ind L J 338, n 2,1957) saddled with a guest statute of some form have conceded an inability to conform to the requirements of the respective acts. It requires no seer to know that the application of the statutes has resulted in manifest injustice. Neither does it require exposition, beyond mention, to describe the revolution in motor vehicle travel between the period of 1927-1935, the years in which most of the guest statutes were enacted, and 1960. This revolution has *214not been so subtle as to proscribe judicial notice thereof. Yet the majority appear to believe that we should continue to look at the act in the 1929 setting in which it was enacted. I think we should decide, if we can, the purpose for which the statute was enacted and any mischief it was designed to prevent and test the statute in that light. With respect to this postulate I am aware that the courts and jurists, both historically and presently, adopt widely divergent opinions as to both the power of a court and the extent to which a court may review a legislative act. See Bead and MacDonald, Cases and other Materials on Legislation, ch 7, (1948).
In this instance, however, it seems not only fair but essential to ask: Of all the many relationships and activities created by motor vehicle travel, why should the legislature single out to penalize a person who commits no other act than to enter the motor vehicle of another? Was the status of host so salutary as to be protected and that of the invitee so opprobrious as to warrant restrictions of basic legal rights?
I think we cannot avoid some answers to these questions. The self-imposed rules of statutory construction do not prevent it. Peters et al v. McKay et al, 1952, 195 Or 412, 438 et seq., 238 P2d 225, 246 P2d 585. It also appears that when the legislature acts to limit powers normally exercised by the judiciary, and to deprive citizens of existing rights, the courts have not only the power, but the duty to examine the act with greater care.① This should be particularly true when it can be shown that the purpose and result of the guest act was to deprive one class of citizens of existing common law rights for the economic benefit of another class.
*215What prompted the enactment of the guest statute in this as well as other states?
“The history of the ‘guest law movement’ is quite vague, but it seems probable that sometime prior to 1927 there arose several cases in which a generous driver, having offered a ride to a friend or a stranger along the highway, suddenly found himself a defendant in a case that turned on some clear question of simple negligence.
“No doubt there were also cases where there was collusion between the host and the guest in order to fasten liability upon the insurance company by which the car was insured.
“It seems quite probable that some executive of a large insurance company looked over the list of ‘cases paid’ at the end of a year. Probably he either was a member of the bar or had been trained in the law. When he observed the large number of eases in which the claimant or plaintiff had been a guest in the car, he conceived the idea of a statute that would rule out ‘simple negligence’ in all such cases and thus reduce the risk of his company. He wrote to an insurance commission or the commissioners of several states. The idea grew. In 1927, Connecticut enacted the first guest law. * * * ((# sfc * &
“* * * During the depression after 1929, there were many hitch-hikers and many actions were filed by guests picked up on the highways. All insurance company officials became interested in the enactment of guest statutes, and primarily through their efforts guest law bills were introduced in almost every state. * * *”②
The United States Supreme Court found itself not “unaware of the increasing frequency of litigation in *216which passengers carried gratuitously in automobiles, often casual guests or licensees, have sought recovery of large sums for injuries alleged to have been due to negligent operation.” The court found that the legislature (of Connecticut) could consider that these eases presented an “evil” to be regulated. Silver v. Silver, 1929, 280 US 117, 122, 50 S Ct 57, 74 L Ed 221, 65 ALR 939. It has been said that: “Thus, the aim of the statutes and the courts is to protect honest guest claimants on the one hand, to prevent thievery on the part of fraudulent claimants on the other, and to bring down the cost of carrying automobile liability insurance protection.”③ Our own court apparently considered that fear of collusive actions and a distaste for “biting the hand that feeds” were reasons which prompted our guest statute. Perozzi v. Ganiere, supra.
It should be fair to assume that our legislature was prompted by the motive just described when it passed the guest act. The fact that the legislatures of most of the states were presented with guest statutes within a relatively contemporaneous period of time indicates that a well organized group was sponsoring such legislation. It does seem unlikely that a national epidemic of anti-guestitis was visited upon the several members of the state legislatures by natural causes. Therefore, if the reasons above given for passing the guest statute be true, then it presents a real cause for the difficulty the courts have faced in trying to apply them.
In other words, if the evil to have been eliminated was fraud, it is readily apparent that restricting liability does not cure the vice. The prevention of fraud was a proper public policy. And it should not *217be inferred, by what I say here that there was anything improper in the design of the companies to protect themselves from fraud. The trouble is that the cure adopted did not fit the disease. To apply a more stringent test of liability for all hosts and guests had no reasonable relationship to fraud. It would be much like prescribing castor oil for a broken bone. The act treats all persons who ride in another’s motor vehicle as mala per se. The result is that a court gets no help if it attempts to look to any purpose or policy to be served in construing the act. Obviously, the court cannot give an instruction that the guest act will apply only when the parties have been guilty of conniving. The courts have been required, therefore, to try and later discard numberless definitions and standards by which to apply the guest acts. In final analysis each definition has been a use of the same words in different context or order or different words having largely synonymous meanings. Each such attempt and failure by a court has been caused, in large part, by the fiction that a so-called guest in an automobile should be penalized, but the reason therefor had no relationship to the status of the actors involved. If the “aim” of the guest statutes was to distinguish between the honest and dishonest guest, it is difficult to see how that purpose has been accomplished. It would be difficult to find any similar statutory scheme where the righteous are punished equally with the sinner. It would be equally difficult to find a similar situation in which the legislative action has no direct relationship to the purpose of the statute and the evils to be eliminated.
The problem of applying such words as “gross negligence”, “wilful and wanton” to solve this dilemma has been described, in a somewhat facetious vein, by *218an Illinois lawyer, David M. Bnrrell, in writing a handbook for Illinois trial lawyers on the subject of “A New Approach to the Problem of Wilful and Wanton Misconduct.”④
“One experienced trial judge has evolved a theory which epitomizes the hopelessness of our traditional technique. It may be called the ‘Oh, my God’ theory of wilful and wanton misconduct. The application of this theory is simple: If, while listening to a witness recount the facts of the accident, the judge finds himself gripping the arms of his chair and saying to himself, ‘Oh, my God, you didn’t’ then the conduct is wilful and wanton. Quite clearly, this view has the virtue of candor and the disadvantage of hopelessness for, as to the latter, no prediction can be based upon it and the best argument for the defense would be to slip the judge a sedative. On the other hand, it is impossible to read the welter of words that ornament the traditional opinions on this subject without concluding that, consciously or unconsciously, they merely serve to obscure the judicial process, whatever that may be.”
I am convinced that much of the confusion resulting from the guest statute stems from our inability to consider the real purpose intended to be served by the statute. This is one of the reasons why we should consider nullifying the act.
On the other hand, if we consider that the purpose of the act was to preclude a person from “biting the hand that feeds” him, then we should more closely examine the status of the person riding in another’s car to make sure that the rider is being fed by the host. And that test should be more realistically applied to the facts of today’s motor vehicle use.
In short, it is probable that in 1929 many of the *219persons who entered the vehicle of another were more likely to he a true gratuitous invited guest. Today, however, we all know that the freeways, the highways providing approach to the more metropolitan areas, and city streets are clogged at given hours of each day with workmen sharing the ride, mothers pooling cars to haul children to school and places of recreation — no small part of the traffic problem — teen-age youngsters sharing rides to school and recreation, business associates sharing rides to mutual engagements for the equal convenience of all in the car, judges and lawyers sharing rides to bar meetings. Today the cost, greater distances involved from place of residence to place of work and traffic congestion, to name only a few of the causes, compel citizens in all walks of life to a combined use of automobiles as an accepted part of neighborhood, business, and particularly, suburban, life. We cannot ignore these facts.
Further, as exemplified by the instant case, the growing use of automobiles by children of high school age is, of course, now widespread. A rarity in 1929. Yet when a group of high school children enter a car, as in this case, the purpose is usually one of greater benefit or pleasure to the host than to the guest. If the issue had been raised in this case I doubt that it could be said that plaintiff was a guest in the car in any actual legal or factual sense of the word.
I recognize that the matter of defining a guest was not in issue in the Williamson case nor in the instant case. However, I think that we must face the fact that people in the use of automobiles have themselves altered the status of many vehicle passengers beyond the concept of a guest in the more strictly legal sense of the word. It would seem to me that we would defy *220reality if we continue to require some form of tangible consideration to distinguish between a guest and a passenger.⑤ I am of the opinion that people would be more confused with an explanation of the legal concept of an automobile guest than they would be with definitions of gross negligence, etc. We should recognize that the automobile has become as much of an essential tool in the requirements of today’s business and social life as a tractor is to a farmer. An automobile can no longer be treated as land and all that enter therein are trespassers and do so at their peril. “But-moral associations which are wholly of artificial creation, when intellectual culture goes on, yield by degrees to the dissolving force of analysis * * *."⑥
The basic issue that I come to is: If the guest act has become, as it appears to be, unworkable and incapable of sensible application, we should say so.⑦ We should not wait for a harried legislature to relieve the courts of the state of an intolerable burden that results in more injustice than justice. I recognize as fully as my brethren that such action by a court must be taken only when the reasons therefor are conclusive. “But the dilemma between an interpretation that leaves *221policy to the legislature, and obedience to the dead hand of an outmoded provision remains.”⑧
“Is it too much to hope that courts, who must often take over this function from the jury in order to give proper weight to the social utility of conduct which undoubtedly threatens harm to the legally protected interests of others, will realize that, in so doing, they are exercising an administrative function and that such decisions are not, like their decisions construing and declaring those principles which are fundamental to our concept of law, sacrosanct from judicial re-examination and change under changing conditions?”⑨
In West v. Jaloff, 1925, 113 Or 184, 232 P 642, 36 ALR 1391, Chief Justice McBride had this to say about a somewhat similar statute:
“* * * This construction takes away from an injured person a good common-law remedy for a private injury committed by a private citizen and gives him an emasculated remedy wholly inadequate under many conditions. Perhaps, if the section should be construed as referring to the criminal liability of the driver, it might be upheld. But ever since the cases of [citing cases] it has been the settled law of this state that the common-law remedy for negligently inflicted injuries could not be taken away without providing some other efficient remedy in its place. * *
It is my view that we should examine the guest statute to see if by today’s and tomorrow’s standards the statute any longer provides an “efficient remedy” for the common law rights it abolished. And if it is found that this court cannot now overrule Perozzi v. Ganiere, supra, then we should more consistently leave the determination of these cases to the jury.
*222In respect to the instant case the majority have now applied one of the tests adopted by Williamson v. McKenna, supra. The opinion on rehearing in this case says: “One of the categories, as given in that opinion, [Williamson] is the following: ‘The defendant’s conduct must involve a high degree of probability that harm will result.’ ” The opinion concludes that the defendant’s conduct did not encompass a high degree of the probability of harm. Neither the original opinion nor the one on rehearing indicate upon what basis this conclusion is reached; by what judgment or intuition the court decides what creates a high probability of harm.
The unexpressed assumption seems to be that the risk of running off of the road while rounding a curve at high speed is less likely to produce serious injury than some other form of negligent driving — pulling out of a line of traffic to pass another car, for example. Facts are available, if we are going to consider facts, which dispute the majority’s concept of safety. Statistics as to the causes of accidents involving fatalities have been gathered by the state motor vehicle department for several years. Statistics for the year 1959 reveal some interesting, if not striking, comparisons as to the relative harm that may result from given kinds of highway accidents. Assuming that the incidence of death is a fair criteria of risk of harm, we find that, in 1959, 117 deaths occurred in accidents classified as “Ban off road.” This compares with 68 deaths resulting from “head-on” collisions. It appears that 192 deaths resulted from one-ear accidents compared with 143 resulting from collision accidents. Statistics gathered by the National Safety Council for the same year reveal that 40 per cent of total highway deaths resulted from “collision *223of motor vehicles” and an equal 40 per cent resulted from “noncollision, roadway.” Deaths resulting only from “car off curve” caused 16 per cent of total highway deaths in comparison to 20 per cent caused by “head-on or sideswipe.”
These compilations may not be conclusive, but they are more persuasive than someone’s estimate as to what form of negligent driving results in the more serious harm. It is apparent that driving around a curve with excess speed is one of the most frequent causes of death. It creates a belief that the conduct of the defendant in the instant case did create a “high degree of probability” that harm would result.
If I had participated in the original consideration of this case I would have joined in the dissent of Habéis, J. I do join in the present dissent of Wabnee, J. The judgment should be affirmed.
“② ‘A judge who has long sat at nisi prius ought gradually to acquire a fluid of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury. He should be able to lead and to instruct them in detail, even where he thinks it desirable on the whole to take their opinion. Furthermore, the sphere in which he is able to rule without taking their opinion at all should be continually growing.’ Holmes, The Common Law 124 (1881).
"③ See, e.g., Holmes, The Common Law 110 et seq. (1881). A different point of view was expressed by Judge Cooley in Detroit & M.R.R. v. Van Steinberg, 17 Mich. 99, 120, 121 (1868): ‘The case, however, must be a very clear one which would justify the court in taking upon itself this responsibility. For when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and measuring the plaintiff’s conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that *212to be a question, of fact which, the first has ruled to be one of law. Indeed, I think the cases are not so numerous as has been sometimes supposed in which a judge could feel at liberty to take the question of the plaintiff’s negligence away from the jury. . . . The difficulty in these cases of negligent injuries is, that it very seldom happens that injuries are repeated under the same circumstances; and, therefore, no common standard of conduct by prudent men becomes fixed or known.’ ”
1 Cooley’s Constitutional Limitations, ch V, (8th Ed, 1926).
1954 Ins L J 583, a paper given by Clel Georgetta, an attorney of Reno, Nevada, at the Fourteenth Annual Convention of the Federation of Insurance Counsel. I do not know to what extent the writer has drawn upon his imagination. The source lends some credence to Mr. Georgetta’s theory of the conception and' birth of the guest statutes. It might also be assumed that the executive’s knowledge of the law would make him aware of Massaletti v. Fitzroy, 1917, 228 Mass 487, 118 NE 168. By 1935 about 28 states had adopted guest statutes.
Malcom, Automobile Guest Law, 1937, p 3.
1949 Ins L J. 717, at p 723.
"* * * If we search the precedents so intent upon the past that we have no eye for what is going on ini the world about us, it is easy to find analogies and resemblances which will serve as a superficial justification for the extension of a precedent to sets of facts whose social implications may be quite different from any which the precedents have considered * * *” Harland F. Stone, The Common Law in the United States, 1938, 50 Harv L R 4, p 9.
“* * * Law performs its function adequately only when it is suited to the way of life of a people. * * *” ibid., p.ll.
From a treatise by John Stuart Mill, reprinted in part in Weber, The Western Tradition, 1959, pp 542, 552.
“* * * No doubt there is a field within which judicial judgment moves untrammeled by fixed principles. Obscurity of statute or of precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function. * * *” Cardozo, The Nature of the Judicial Process, 1921, p 128.
Friedmann, Legal Theory (3rd Ed) p 304.
Bohlen, Mixed Questions of Law and Fact, 1924, 72 Penn L R, pp 111-122.