(dissenting). All concede that the present case is one of first impression here. Under our guest statutes, as pointed out in Volume 3 — Arkansas Law Review No. 1, p. 101: “In effect, the exact limits of the host-guest relationship in Arkansas are as yet undetermined.”
Under § 75-913 Ark. Stats. 1947 (of 1935) no guest, had a cause of action against the owner or operator of an automobile for damages unless the automobile was being operated willfully and wantonly in disregard of the guest’s rights. That section was amended by § 75-915 Ark. Stats. 1947 (enacted at the same term) and provided: “No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, . . . shall have a cause of action for damages against such owner or operator, or other persons responsible for the operation of. such car, for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless such injury shall have been caused by the willful misconduct of such owner or operator. ’ ’ It seems clear to me that the legislature in the latter section (75-915) intended to add a greater protection to the driver or operator of an automobile while carrying anyone gratuitously (or as a guest) not only while such guest was in the car but while entering the car or while “leaving such motor vehicle.”
“The primary purpose of statutory construction is to ascertain the intention of the legislature, not only from the language used but also from the reason and necessity for the act, the evil sought to be remedied and the objects .and purposes sought to be obtained by it . . . The words of a statute will be interpreted according to their common and popular acceptation and import unless that interpretation will defeat the manifest intent of the legislature ... A situation which is within the object, spirit and meaning of a statute is regarded as within the statute although not within the letter ...” Tallios v. Tallios, 350 Ill. App. 299, 112 N. E. 2d 723.
The undisputed evidence in this case is to the following effect: Appellee (Mrs. Lawrence) was a visitor in the home of Mrs. Brewer, and Mrs. Rogers (appellant), Mrs. Brewer’s friend, proposed to transport Mrs. Lawrence, as her guest, from Mrs. Brewer’s home out to Mrs. Rogers’ new home (which Mrs. Rogers wanted appellee to see) and then to return Mrs. Lawrence back to Mrs. Brewer’«s home. In the course of this journey, at Mrs. Lawrence’s request, Mrs. Rogers stopped her car within a few inches of the curb for the purpose of allowing appellee momentarily to interrupt the journey and get out of the car to say goodbye to a friend, before she, Mrs. Lawrence, terminated her visit with Mrs. Brewer (which she intended to do on the following day). When the ear stopped, Mrs. Lawrence opened the rear right hand door of the car, stepped to the pavement, a few inches from the curb, and before she could step from the pavement to the curb, Mrs. Rogers started the car forward and some part of the car, either the door or fender, struck Mrs. Lawrence, knocked her down and injured her. In other words, appellee had not gotten far enough away from the car, in the act of leaving it, to avoid being struck by it. As I see it, there is no escape from the conclusion that appellee was injured while leaving the motor vehicle for the specific purpose of temporarily interrupting the journey and then to re-enter the car and complete the journey. In these circumstances, I think, it was the legislative intent that she was still a guest at the time and could not recover. It seems obvious to me that the legislature, to make it more difficult for collusive suits and to further restrict grounds for recovery against owners and drivers of automobiles, found that the first section above (75-913) was not broad enough and did not afford sufficient protection, and that Section 75-915 was enacted for this purpose.
The Supreme Court of Kansas in Marsh v. Hogeboom et al., 167 Kan. 349, 205 P. 2d 1190 (1949) in construing its guest statute which provided: ‘ ‘ 8-122b. Right of guest to collect damages from owner or operator. That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle, ’ ’ in circumstances similar to those presented here, held: “Where motorist took guest by automobile to guest’s home, guest alighted from automobile and took hold of right door handle of automobile to close door, and motorist then negligently started up, catching guest’s hand on door handle, throwing guest to the ground, and causing injuries, she was still a ‘ guest ’ within meaning of automobile guest statute at time she was injured and could not recover from motorist, in absence of showing of gross and wanton negligence. ’ ’
In Head v. Morton, 302 Mass. 273, 19 N. E. 2d 22, the Supreme Judicial Court of Massachusetts, where the facts were: [plaintiff] “I was in the air. I had not left the sidewalk. I had not left anything. My right foot was in the air, and my left foot was on the curbstone, and I was starting into the car in that motion, ’ ’ held in favor of the defendant and said: “If the relationship of ‘host’ and ‘guest’ as these words are commonly used, had come into existence at the time of the plaintiff’s injury, she cannot recover ...” We think that the case at bar comes within the rule stated in Ruel v. Langelier, 299 Mass. 240, 12 N. E. 2d 735, where it was said, ‘Coming now to the case before us, it must be clear that the degree of the defendant’s duty does not depend upon the physical position of the plaintiff at the moment of the accident, or upon whether she was then in the defendant’s automobile or outside of it, or upon whether in everyday language she would be described as a guest. The degree of the defendant’s duty depends upon whether the act of the defendant claimed to be negligent was an act performed in the course of carrying out the gratuitous undertaking which the defendant had assumed.’ ...” In another Massachusetts case, Ethier v. Audette, 307 Mass. 111, 29 NE 2d 707, the facts were even stronger for the plaintiff than in the present case, but in that case the court held: “1. Automobiles — Where defendant gratuitously undertook to transport plaintiff home, they decided to stop at restaurant for purpose of purchasing food to be eaten by both at plaintiff’s home, plaintiff alighted from automobile, motor was not turned off and door was left open, and plaintiff, without having entered restaurant, returned and stood with one foot on running board, and was injured when defendant’s foot slipped from clutch and automobile suddenly moved, plaintiff remained a ‘guest’ of defendant, who therefore was not liable in absence of gross negligence, notwithstanding plaintiff did not intend to re-enter automobile at the time and had returned merely to ask defendant to accompany plaintiff into the restaurant. ...”
In this day and age, when an estimated 60 million automobiles are on the streets and highways, with practically every family in the nation owning one or two automobiles, if the majority opinion stands, in my opinion, a car owner will hesitate before offering a friend or neighbor a free ride. The risk would seem too great. Personal injury suits will no doubt multiply and liability insurance rates advance — the very things that our legislature seemed determined to discourage.
I would reverse and dismiss.
Justices Smith and Ward join in this dissent.