The case before us presents three questions for decision. Two of them are matters of the first impression in Iowa, and are difficult and important. In order that they may be understood the facts of record and the procedures had in the trial court must be stated. So far as they concern the first two points, the facts were stipulated.
On May 18, 1955, a group of ladies, residing in Sioux City, planned to attend a meeting of a church sewing circle in Jefferson, South Dakota. The defendant had agreed to furnish transportation for at least the first stage of the journey. Mrs. A. W. Horst, the mother of Susan Horst, telephoned the defendant and asked her for a ride for herself and her mother. Susan Horst was at the time thirteen days old. The defendant agreed to pick up Mrs. Horst and her mother, and did so, at about 1:30 p.m. Mrs. Horst brought Susan with her, holding her in her lap. She also brought her young son, Stephen. Mrs. Horst and Susan were in the front seat, on the right-hand side, with her mother and Stephen and another woman, Mrs. Duke, whom the defendant was also transporting, in the back. We shall hereinafter refer to Susan as the plaintiff, although the action is brought by her father as next friend.
With this seating arrangement, the defendant stopped her automobile on thе west side of a street known in the record as Grandview, headed south on a downhill slope. Apparently the brake was set; at least the car remained stationary, about a ear’s width from the west curb, with the motor running. An elderly lady, Mrs. Davis, who was also to make the trip, lived on the east side of Grandview opposite the point where the car stopped. The defendant got out of the car and went to assist Mrs. Davis across the street and into the ear. Mrs. Davis got in through the left front door and under the wheel; as she did so, or immediately afterward and before the defendant had entered the сar it *961 started, caromed off a parked car, ran down the hill and into a schoolhouse. The plaintiff was severely injured.
Plaintiff’s suit having been brought and the matter being at issue, plaintiff made her application for an adjudication of law points, under rule 105, R.C.P. The requested points to be adjudicated were these:
“1. Can a month-old infant be a passenger or a guest within the provisions of section 321.494 of the Code of Iowa?
“2. Can a person in charge of an automobile be the operator of it within the provisions of section 321.494 of the Code when such person is absent from the automobile?”
It is evident that if either or both of the foregoing questions should be answered in the negative section 321.494 (the Iowa guest statute) would not apply, and the burden upon plaintiff to prove her case would be that of showing negligence only. But if both points were determined in the affirmative plaintiff would be put to the necessity of showing recklessness. One count of her petition claimed upon specific negligences; one upon res ipsa loquitur (likewise depending upon negligence); and one alleged recklessness. The trial court, through Judge Ralph C. Prichard, adjudicated both law points submitted to it by holding thаt the plaintiff was a guest and the defendant was the driver and operator of the ear, both within the meaning of section 321.494, supra. This left plaintiff only her recklessness count upon which to rely; and, the case coming on for trial upon this issue, before Judge R. W. Crary, a verdict was directed for the defendant at the close of plaintiff’s evidence; the court thereby holding that no jury question had been engendered upon the question of recklessness.
I. The errors assigned raise the questions suggested by the application for adjudication of law points set out above, and a third one as to thе correctness of the trial court’s ruling that recklessness was not shown, as a matter of law. We shall first determine whether a small child, in this case an infant thirteen days of age, when riding with and in the care of its mother and by her consent, is a guest within the meaning of section 321.494. Since we think the exact wording of this statute is important, we set it out.
*962 “321.494. Guest statute. The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.”
The purpose for which this statute was enacted is also material. We have given consideration to this thought in Bookhart v. Greenlease-Lied Motor Co.,
There is a considerable volume of authority upon the question of a minor of tender years qualifying as a guest under the statutes which have been adopted generally in the various states. Some of them require in effect an invitation and an acceptance, as for example California and Nebraska. It is argued by the appellant here that being a guest implies an invitatiоn, express or implied, and an acceptance; and that a thirteen-day-old infant is incapable of accepting, and so cannot be a guest. Except for dicta found in a few cases, there are none which hold flatly that such a child may not under some circumstances be a guest. Other cases, relied upon by the defendant-appellee, say that the acceptance may be by the parent or other person having legal custody and care of the infant. The cases cited by the plaintiff are, without exception, those in which a child was taken into an automobile, absent its natural guardians or any consent or approval from them, or, as in Hart v. Hogan,
The plaintiff relies largely upon two cases: Rocha v. Hulen,
In addition to Welker v. Sorenson and Buckner v. Vetterick, both supra, there are many cases holding that a child of tender years may be a guest. Many of these cases say that no invitation, implied or express, or acceptance are necessary to create the guest status. The Arkansas Supreme Court has said: “It will be observed that in defining a guest the statute makes no exception in favor оf minors and we have no authority to write that exception into the statute.” Tilghman v. Rightor,
In Morgan v. Anderson,
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The Texas Court of Civil Appeals was faced with au interesting situation involving the question whether one incapable of assenting to transportation or accepting an invitation to ride could be a guest, in Linn v. Nored,
“Our guest statute clearly provides that the creation of the relationship is based upon the fact that no consideration is paid for the transportation; # * #.
“Manifestly our statute makes no distinction between a drunk and sober person, or between minors and adults, or sane and insane persons; * *
The Massachusetts case of Balian v. Ogassian,
“It is beyond controversy that the defendant’s undertaking to transport the minor plaintiff was gratuitous. * * * Generally such an undertaking imposes no liability for ordinary negligence. * # * The minor plaintiff’s tender years do not take these cases out of the general rule.”
See also Langford v. Rogers,
The authorities holding that under some circumstances a small child incapable of assenting to becoming a guest in a motor vehicle is not a guest under thе statutes operate only in a narrow field. Language used in some of them tends to make an otherwise simple question complicated and confused. Properly classified they fall into two overlapping categories: cases in which the child was incapable of accepting an invitation to ride and was not in charge of a natural guardian who accepted for him; and cases in which the statute itself defined a guest as one who accepts an invitation. Whether so distinguished and classified they are sound, we are not called upon to determine. But the rule when neither of these conditions exists is clear. As *966 the Arkansas Supreme Court cogently remarked in the passage quoted above, the statute makes no distinction between adults and minors, and the courts have no right to amend the statute by so doing.
A “guest”, as defined by Webster’s New International Dictionary, Second Edition; is: “A person entertained in one’s house or at one’s table; a visitor entertained without pay; hence, a person to whom the hospitality of a home, club, etc., is extended.”
Highly significant is the definition given in 2 Restatement, Torts, page 1272, section 490: “The word ‘guest’ is used to denote one whom the owner or possessor of a motorcar or other vehicle invites
or permits
to ride with him as a gratuity * * (Italics supplied.) Under this definition mere permission is sufficient to constitute a free rider a guest. Either invitation or permission is sufficient to create the relationship. The definition has been referred to, with approval, by the Supreme Court of Illinois in Miller v. Miller,
The record in the case at bar shows without dispute that plaintiff’s mother asked the defendant, via telephone, for the ride to the meeting of the church society. This emphasizes the permissive rather than the invitational feature of the trаnsportation. Of a somewhat similar factual situation, the Massachusetts Supreme Court has said: “He did nothing and said nothing to invite them, and the nearest analogy that occurs to us is that of a self-invited guest in whose presence the host acquiesces and whose enjoyment he seeks to promote, or that of a gratuitous bailee.” West v. Poor,
Blashfield’s Cyclopedia of Automobile Law and Practice, Permanent Ed., Volume 4, section 2351, says this: “* * * where, by statute or common law, gross negligence or wanton, willful, or reckless misconduct is essential to the existence of liability on the part of a host to a gratuitous invitee, the rule applies with full force, although the guest is an infant * *
Finally, our own statute, section 321.494, supra, makes the legislative intent clear that a “guest” may be a person other than one riding by invitation; as by permission. The statute *967 refers to “any * * * person riding in said motor vehicle as a guest or by invitation and not for hire.” (Italics supplied.) Not only is the disjunctive used, but unless “guest” means something other or in addition to one riding “by invitation”, the latter phrase is redundant and meaningless. The legislative intent is of course the important question; we think it must have had in mind permissive as well as invited riders. It is no doubt true that the rеlation of guest under the statute cannot be forced upon one; it must be by permission rather than command. But here the mother of the plaintiff i*equested the transportation, and permission was granted by the driver, the defendant. The definition quoted from Restatement, Torts, supra, applies; as well as the basic reason for the enactment of the guest statute stated in Bookhart v. Greenlease-Lied Motor Co., also supra. The trial court correctly ruled at this point that the plaintiff was a guest within the meaning of our statute.
II. The plaintiff-appellant further urges that the defendant was not thе operator of the automobile at the time of the injury, because she was not in the car and so could not have had control of it. It is the apparent thought that if the defendant was not the operator of the car, the plaintiff was not riding in it as a guest within the meaning of section 321.494, supra; and so the defendant would be liable for ordinary negligence. While the real question is whether the plaintiff was riding as a guest, the parties have argued the point as if it were determined by the question whether the defendant was operating the car, and we accept the ease at this pоint as made by them.
The plaintiff calls attention to section 321.1, subparagraph 42, which we quote: “ ‘Operator’ means every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway.” She also relies heavily upon Puckett v. Pailthorpe,
Twogood v. American Farmers Mut. Auto. Ins. Assn., supra, concerned the question whether one who, sitting at the right of the driver, takes hold of the wheel can be said to have been the sole operator of the car. A policy of collision insurance provided that it would not apply when the autоmobile was being operated by a person under the age fixed by law or unauthorized by law to drive. A minor with no driver’s license was under the wheel and operating the mechanism, except that just before the accident the plaintiff, the owner of the car, who sat beside the driver, placed his hand upon the wheel. The case holds only that the unlicensed driver was still operating the car, and at most the plaintiff was only attempting to “aid in the operation of the car.”
Puckett v. Pailthorpe, supra, from which plaintiff quotes at length, is so clearly distinguishable upon the facts that it gives no аid. The parties having met at a café, the defendants offered plaintiff a ride to her home. Their car was parked near the café, and plaintiff, having finished her meal before the defendants, it was suggested that she seat herself in their ear to await them. As she took hold of the door of the car to open it, it fell from its fastenings, injuring her. We pointed out that the car was not being operated within the meaning of the guest *969 statute (page 618 of 207 Iowa): “Her object in entering was not then and there to become a passenger during the interval that appellees were eating their dinner, but rather it was her intention to sit in the car and wait until the driver came * * * in order that she could then be a passenger. * * * Had the appellant ridden to the restaurant with appellees as their guest, on a journey Avhich contemplated the stop for the noonday meal, and intended a return trip home again, during all of which time appellees were the drivers in charge of the automobile, then a different question would be presented.” The “different question” referred to in the Puckett ease, supra, is the identical one now presented in the case at bar.
The plaintiff presents, out of contest, a quotation from Mould v. Travelers Mutual Cas. Co.,
The identical question involved in plaintiff’s contention at this point has not been squarely decided in Iowa, although we think the dicta in Puckett v. Pailthorpe and Mould v. Travelers Mutual Cas. Co., both supra, point the way to a proper answer. What we must decide is whether a person who has started on a journey, has picked up several passengers and stops for still another, leaving the motor running, and is gone only long enough to walk across the street to assist a prospective passenger and has returned to the ear but has not re-entered it when an accident occurs, is still at that time operating the car; and whether the passengers already in the car are guests within *970 tbe meaning of our statute. Cases decided under similar circumstances in other jurisdictions have without exception, so far as we have discovered, answered in the affirmative. We shall briefly refer to some of them.
In Stroud v. Board of Water Commissioners,
Liberty Mutual Ins. Co. v. McDonald, 6 Cir., Tenn.,
In Commercial Standard Ins. Co. v. Bacon, 10 Cir., Okla.,
Cook v. Crowell,
Pertinent language appears in a decision of the Supreme Court of New York, Hand v. Frazer,
“No automobile can be put to reasonable use upon our highways in perpetual motion and the Legislature did not so contemplate. * * *
“The word ‘operated’ is not, as the defendant contends, limited to a state of motion produced by the mechanism of the car, but includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation.”
Somewhat analogous to our problem in the case before us are cases holding that a person riding gratuitously in a motor vehicle who alights therefrom during the course of an uncompleted journey is still a guest while out of the car. See Hobbs v. Irwin, 60 N. M. 479,
We conclude that the defendant was operating the car at the time the accident occurred in the case at bar. She had left the motor running while she went across the street for a temporary purpose directly connected with the journey and for a time of a few minutes only. The journey upon which the party had started was not completed. If the defendant was not operating
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tbe automobile, no one was. It bad been entirely in ber control during tbe first part of tbe journey, and was to be so during tbe remainder. Tbe running motor was a result of ber handling tbe meebanism. As to section 321.1, subparagraph 42, supra, we think it must be construed in tbe light of reason. We think tbe purpose of tbe statute is to say thаt only one person may “operate” a motor vehicle. State v. Myers,
It is of course obvious that tbe defendant was not in actual physical contact with tbe meebanism when tbe car started down tbe slope. If she bad been in tbe car this might likewise have been true; yet it could hardly be contended that she was not “operating” it. She might have been sitting behind tbe wheel for a moment before engaging tbe gears, for any one of a number of reasons. And a driver whose ear is proceeding along tbe highway is not always in “physical control” of it. Many accidents occur because a driver loses control of bis vehicle. Tbe statute must be read in tbe light of common sense, as a guide to what tbe legislature intended in enacting it. Both tbe authorities cited above and tbe rule 'of reason which they apply indicate that a car may be operated although tbe operator leaves it, during tbe course of a journey, for a temporary purpose. We think the defendant was operating her automobile during tbe few moments she left it to assist her prospective guest across tbe street; and that nothing in tbe situation changed tbe plaintiff’s status as a guest under section 321.494.
III. It remains only to determine whether tbe trial court properly granted defendant’s motion for a directed verdict at tbe close of plaintiff’s evidence. Here the problem is whether there was a jury question as to defendant’s recklessness in op
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era ting as she did. We think the court’s ruling was correct. “Becklessness implies ‘no care, coupled with disregard for consequences.’ ” Siesseger v. Puth,
Nor was the situation such that the acts of the defendant made a “catastrophe” probable rather than merely possible, as the plaintiff urges. Nothing more than a possibility of danger fairly appears. A discussion of dissimilar facts in other cases would be of no benefit. The trial court was correct in each of its rulings of which complaint is made. — Affirmed.