(concurring in the result)—I concur in the result reached by the majority, but am not in accord with the view that a violation of the penal statute referred to prevents the formation of the relationship of host and guest or licensor and licensee. The case of Upchurch v. Hubbard, 29 Wn. (2d) 559, 188 P. (2d) 82, is authority for such viewpoint, but I think the reasoning upon which it is founded is illogical. The same result would be reached by holding that the boy who was injured was not of such an age as to be a competent party to the formation of the licensorlicensee relationship. Rem. Rev. Stat., Vol. 7A, § 6360-100, has no relationship to § 6360-121. It deals with a different subject and has entirely different objectives. It is designed to prevent difficulties arising out of motorists giving strangers transportation, often resulting in the commission of crime, and the traffic hazards created by stopping on highways to pick up pedestrians. Like many protective *737statutes, it is honored more by its breach than its observance. I do not see how a statute with such objectives can have anything to do with the formation of the host-guest or licensee relationship. When a person upon a public highway solicits a ride he has violated the statute, and when the motorist either offers a ride to such person, or accepts the solicitation, he has also violated the statute. In either case the statute is violated before the relationship of host-guest or licensor-licensee is created. The acts are almost simultaneous. One is a preliminary step towards the other. I am unable to see how nonliability for subsequent injury can in any way be affected.
The judgment should be affirmed upon the ground that the allegations of the complaint bring the decedent and appellant Morton within Rem. Rev. Stat., Vol. 7A, § 6360-121.