In 1939, S.L. 1939, Chap. 160, p. 285, Section 48-901, I.C.A., was amended to provide:
"Liability of Motor Owner to Guest. No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of the said owner or operator or caused by his * * * intoxication or his reckless disregard of the rights of others." (Emphasis in the statute.)
It will be noted the legislature expressly provides no guest "shall have a cause for damages against such owner or operator" of a motor vehicle, "for injuries, death or loss, in case of accident, unless such accident shall have been [a] intentional [emphasis added] on the part of the said owner or operator, or [b] caused by his * * * intoxication [emphasis in the statute], or [c] his reckless disregard of the rights ofothers [emphasis added]." In the case at bar, it is not either alleged or contended respondent was intoxicated at the time of the accident. Nor do appellants either allege or contend the accident in which Marvin G. Hughes lost his life was "intentional" on the part of respondent. Here a recovery of damages is sought on the ground the accident was caused by respondent's "reckless disregard of the rights" of Marvin G. Hughes.
New Standard Dictionary (Funk Wagnalls, 1933) defines "reckless": "(1) Destitute of heed or concern for consequences; especially, foolishly heedless of danger; headlong; rash; desperate." *Page 21
This, undoubtedly, is the sense in which the legislature used the word, as well as the commonly understood meaning of the word. Hence, by the use of the phrase "reckless disregard of the rights of others," the legislature evidently meant, for instance, an act "destitute of heed or concern for consequences." What conduct and circumstances constitute "reckless disregard of the rights of others," is, of course, a question of fact. It in no way involves an interpretation of the statute. The intent of a driver involved in an accident must be determined by his conduct and all the surrounding facts and circumstances. These might, or might not, show a purpose or intent to injure his guest, or the conduct of the driver and the surrounding facts and circumstances might show a "reckless disregard of the rights of others." As held in the foregoing opinion, the conduct of the driver, respondent Hudelson, together with the surrounding facts and circumstances, disclosed by the record, are sufficient to put respondent on his proof. For these reasons, I concur in reversing the judgment and remanding the cause for a new trial.
I am authorized to say Mr. Justice MILLER concurs in this special concurrence.
BUDGE, J., sat at the hearing but expressed no opinion on the case. *Page 22