Thеse 2 cases were consolidated for trial and appeal. Suit is for injuries sustained by the rеspective plaintiffs in an automobile accident. When it occurred, plaintiff Kathie Ann Burhans was 5 years of age and her sister, plaintiff Betty Lou Burhans, was 7. From jury verdict of no cause for action and judgment thereon in both cases, plaintiffs appeal.
Error is assigned on submission of thе case by the court to the jury on the included theory of possible applicability of thе guest passenger act (CLS 1961, § 257.401 [Stat Ann 1960 Rev §9.2101]), with instructions that, if the jury should find that plaintiffs were guest passengers, then the test of defendant’s decedent’s liability would be his gross negligence or wilful and wanton misconduct rather than mere ordinary negligence. Plaintiffs say this was erroneous for the reason that children of tender years were incapable of becoming guest passengers, particularly when they were in decedent’s car by reason of a driving agreement between plаintiffs’ parents and the parents of decedent’s grandchildren that they would take turns in driving the children to school and that decedent, the grandfather, would drive when it was his son’s turn but he was unable to go.
The question presented is whether the guest act applies to plaintiffs who are children of tender years..
■ -Since trial of these cases, this- Court handed down-opinions in
Baker
v.
Alt,
We come now to the question of whether children of tender years can, as a matter of legal consequence, exercise the requisite power of choice, accept an invitation to become a guest passenger and enter into а guest relationship.
In
Kudrna
v.
Adamski,
“The sole questiоn for decision is whether the plaintiff, at the time of the accident was being transported by thе defendant as his ‘guest’, as that word is used in § 115-1001, O.C.L.A. [1940] * * *
“The statute implies that in order to become a guest оne must exercise a choice in the matter, and we think that a four-year-old child has not the legal capacity to exercise such a choice, just as he is incapablе of negligence, * * *
*256 “In any event a fonr-year-old child, who enters an automobile in the custоdy of a parent or other custodian, does not do so of its own free will and cannot be said to have accepted an invitation to ride from the owner or operator of the car.”
In
Fuller
v.
Thrun,
109 Ind App 407 (
“If children under seven years of age are conclusively presumed to bе incapable of committing crime, and if they are conclusively presumed to be incapable of contributory negligence, it would seem that this age limit should also be adoptеd in determining whether or not a child of tender years can be a guest.”
Considering and applying thеse Orgeon and Indiana cases in connection with the recent holdings of the majority of this Cоurt in Baker, supra, and in Queen Insurance Company, supra, as we do, it follows that the instant case of plaintiff Kathie Ann Burhans, age 5, should be and is reversed and remanded for new trial on the ordinary negligence theory only, without applicatiоn of the guest passenger act. The case of the 7-year-old, Betty Lou Burhans, should be and is rеversed and remanded for new trial with the direction to the trial court that the jury shall determine her capability of becoming a guest passenger on the basis of her age, ability, intelligenсe, and experience and whether she conducted herself as a child of such age, ability, intelligence, and experience would reasonably have been expected to do under like circumstances.
Beversed. Costs to plaintiffs.