¶1(dissenting) — It has been said that the reason for the enactment of the so-called host-guest statute was the prevention of collusive lawsuits. There is truth in this. But more likely the statute was enacted because of the interest of insurers and activities in their behalf around legislature time. This is not intended as a criticism. It is merely a comment respecting the probable background and purpose of the host-guest act. The rash of lawsuits a number of years ago in connection with automobile accidents, pitting friends and even relatives against each other, occasioned by the phenomenon of automobile driver or owner insurance, was bound to affect automobile insurance rates sooner or later.
¶2A substantial segment of our population own automobiles. Consequently, the cost of automobile insurance is of real and legitimate concern, both to them and to the legislature. Whether an expression of state policy on this problem through legislative enactment was right or desirable, does not now seem to be a question of judicial concern. The host-*393guest statute was enacted. Basic state policy was determined thereby, legislatively. Nevertheless', the interpretation and application of the legislation may be a matter of some considerable judicial interest and concern.
¶3•Host-guest legislation appéars to have been initiated in this country during 1927 in Connecticut, Iowa, and Oregon. The Washington act seems to have been closely patterned after the Connecticut legislation. For purposes of comparison, the pertinent parts of the two statutes are set forth.
¶4The Washington statute, Laws of 1937, chapter 189, § 121, p. 911, cited as Rem. Rev. Stat, Vol. 7A, § 6360-121 [P.P.C. § 295-95], reads:
¶5“No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action 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 said owner or operator: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while the same is being demonstrated to a prospective purchaser.”
¶6The Connecticut statute, Laws of 1927, chapter 308, read in part as follows:
¶7“No person 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 loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.”
¶8Two separate and distinct exceptions were written into the Connecticut act. First, when the injury to the passengers was intended by the automobile owner or operator, or second, when the injury resulted from conduct that was heedless and in reckless disregard of the rights of others, the statute was not a bar to the recovery of damages by a passenger. Silver v. Silver, 108 Conn. 371, 143 Atl. 240; Bordonaro v. Senk, 109 Conn. 428, 147 Atl. 136.
¶9The Connecticut digest cites approximately fifty cases under the section on the host-guest statute. A reading of *394these shows that not one was brought under the first exception of the Connecticut host-guest statute. In a majority of the Connecticut cases involving the second exception, the court or jury held that the acts of the driver were not such as to amount to “heedlessness” or “reckless disregard of the rights of others,” and denied recovery.
¶10The Connecticut statute was in effect about ten years. It was repealed in 1937. As indicated above, so far as I have been able to discover, the Connecticut court never found that conduct of a driver of an automobile fell within their interpretation of the word “intentional,” as used in their statute. Obviously, the second exception offers more leaway or more favorable possibilities to plaintiff-passengers interested in overcoming the bar of the statute and seeking recovery of damages for injuries than does the first exception.
¶11The Washington state enactment omitted entirely the second — less burdensome to plaintiff — exception. It did incorporate or include the first — more burdensome, if not impossible, to plaintiff — exception. Shea v. Olson, 185 Wash. 143, 53 P. (2d) 615, held that the intent required by our statute was the intent to cause the injury, — not merely an intent to do the act that caused the injury. And, as a matter of fact, our court has never permitted recovery by a passenger because his injuries were intended by the car owner or operator.
¶12At the present time, our host-guest act is the most severe of any state. The Kentucky statute was as harsh, but it was declared unconstitutional. For some reason, perhaps because of the severity of our statute, or in order to do justice, we have permitted recovery somewhat liberally on the basis of “payment for such transportation.” Thus, plaintiffs have been removed from the status of a guest, and the statutory barrier to recovery has been eliminated. For example, the expectation of plaintiff to pay ten cents for a ride on the day of the accident because she paid ten cents the day before, Parrish v. Ash, 32 Wn. (2d) 637, 203 P. (2d) 330; and the offer by the plaintiff to do the driver’s washing *395in return for a ride, Rose v. Chapman, 19 Wn. (2d) 744, 144 P. (2d) 248.
¶13In the instant case, there was an offer to pay for gas. The majority believes that this offer did not motivate defendant’s generosity nor prompt him to give the boys a ride. The aforementioned cases could, perhaps, be stretched to cover the instant situation; however, it would seem that in reaching the result in those cases, the court stretched far enough and there should be a stopping point. So, perhaps, as the Walrus said, “The time has come.”
¶14After the “payment” cases, came an about-face in Akins v. Hemphill, 33 Wn. (2d) 735, 207 P. (2d) 195, where, although a logical basis existed on which to permit recovery, it was denied. In that case, a sixteen-year-old girl who had accepted a ride with a young man friend thereafter immediately discovered that her host-driver was under the “influence” and was driving with extreme negligence. She requested, demanded and pleaded with him to stop and allow her to get out. He paid no attention, but continued, recklessly, to drive in wanton, willful disregard of the young girl’s safety. There was a bad collision. The girl was very severely injured. This court, sitting En Banc, in a six to three decision stated in effect (as indicated in the dissenting opinion of Judge Steinart) that “ ‘once a guest, always a guest,’ throughout the entire journey, no matter how great or how conscientious an effort the person may make to terminate the relationship,” and that recovery was barred by the host-guest statute. It was suggested in the dissent that the repeated demands of the girl to be let out of the car classified her as a person being forcibly abducted rather than as an “invited guest.” With that I agree.
¶15In this connection, it is my belief that no one would be more surprised by the decision in the Akinscase than those individuals who were members of the legislature when the host-guest act was passed. This is not to say that the legislature was unaware of the possible problem of collusive automobile accident lawsuits or their possible effect upon automobile insurance rates, or that the legislature did not *396intend to afford some appropriate protection to insurance companies by an effective legislative declaration of public interest and state policy. In other words, it is my judgment that the legislature did not intend results as extreme as the one in the Akinscase, but did intend to afford some relief to insurance companies by providing reasonable and significant restraints upon guest-driver personal injury lawsuits.
¶16Justice reared its head again in Upchurch v. Hubbard, 29 Wn. (2d) 559, 188 P. (2d) 82, commented upon at length in the majority opinion. Briefly, defendant, in violation of statute, permitted plaintiff to ride on the running board of his truck, from which plaintiff fell, receiving fatal injuries. We held plaintiff was not a guest, and that defendant, by his unlawful act, deprived himself of the protection of the statute, saying:
¶17“We believe that the legislature meant, and that the statute should be construed to mean, that to exempt the owner or operator of a motor vehicle from liability for the injury to, or the death of, a person transported by him, the relationship alleged to exist between the owner or operator and the person transported must be a lawful one, or at least not an unlawful one, nor one dependent for its creation upon some unlawful act of the owner or operator himself.” (P.566)
¶18Disapproval of the “once a guest, always a guest” rule of the Akinscase has been indicated above; furthermore, it is my belief that Akins v. Hemphill should be overruled at this time. By so doing and by extending and qualifying the '“unlawful” act approach of the Upchurchcase, a contrary result should be reached in the case before us. The Upchurchcase utilized an unlawful act to prevent the inception of the relationship of host-guest. There should be no significant difference in fact or in theory between the matter of the inception of the host-guest relationship and the matter of its termination; and no reason why an unlawful act may prevent inception but cannot accomplish termination.
¶19With the odious rule of Akinsout of the way, a host-guest relationship, although once established in the contempla*397tion of the law, nevertheless, may be terminated. One method of termination lies in the facts of the Akinscase, that is, repeated protests by the guest and requests to be let out. Another is to be found under the “unlawful” act reasoning of Upchurch. As mentioned above, this necessitates extending and qualifying the Upchurchcase — extending it to termination cases and qualifying it in such cases by requiring that the unlawful act should involve willful, wanton, and reckless disregard of the rights and safety of others. In the instant case, defendant was violating a city ordinance and a statute prohibiting auto racing on public thoroughfares, and the trial court found that defendant was driving greatly in excess of the speed limit, an unlawful act; and that this unlawful act was done “in wanton and willful disregard of the rights and safety of the occupants of said automobile.”
¶20The only -unlawful act considered by the majority in the case at bar is the failure of defendant to comply with certain licensing requirements relative to replacement of automobile motors. They distinguish the Upchurchcase on the ground that the unlawful act in that case was the proximate cause of the injury, while the licensing violation in the instant case was not. It is my opinion that the status of the parties in the Upchurchcase was determined entirely independently of the doctrine of proximate cause. It was determined solely on the basis of the unlawful act. For this reason, the proximaté cause cases cited by the majority do not appear to be in point. But if proximate cause should, be regarded as an essential element, the unlawful act I wish to emphasize, the violation of the speed limits and the racing ordinance and statute, can be considered the proximate cause of the accident in the case at bar.
¶21The unlawful-act of defendant, in wanton, willful'disregard of the rights and safety. of - his passengers, should be held to have terminated the host-guest relationship and to have removed defendant from the projection of the statute. I believe that such a result would serve to eliminate *398an occasional injustice without precipitating a wholesale perversion of justice.
¶22(concurring in the result) — I am in sympathy with the views expressed in Judge Finley’s dissent, but feel that the repeated decisions of this court interpreting the host-guest statute preclude a result other than that arrived at by the majority.
¶23If the injustices enumerated by Judge Finley are to be relieved, it will require legislative action.
¶24December 18, 1951. Petition for rehearing denied.