Keasling Ex Rel. Keasling v. Thompson , 217 N.W.2d 687 ( 1974 )

MOORE, Chief Justice.

The issue in this case is the constitutionality of Code section 321.494, commonly referred to as the Iowa guest statute. The trial court held it constitutional. We affirm.

Plaintiff Daniel Keasling, a minor, was injured October 31, 1971, while, riding in an automobile driven by defendant Ira Thompson’s son, when the vehicle collided with another at a rural intersection in Keokuk County. Action was brought by plaintiffs for damages resulting from the accident. Thompson and Thomas Murphy, owner and operator of the other vehicle involved, were made defendants. As amended plaintiffs’ petition against Thompson was in three divisions, one alleging recklessness, another alleging specific negligence and the third alleging general negligence under the doctrine of res ipsa loquitur. Thompson moved to strike the negligence divisions on the ground they failed to state a cause of action under the guest statute. Plaintiffs resisted, alleging the guest statute is unconstitutional under the equal protection clause of Amendment 14, United States Constitution, and Article I, section 6, of the Iowa Constitution. The lower court sustained the motion. We granted interlocutory appeal therefrom.

The two equal protection clauses here raised need not be considered separately as both set out substantially the same limitations on state legislation. Graham v. Worthington, 259 Iowa 845, 863, 146 N.W.2d 626, 638.

Code section 321.494 provides:

“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 an alcoholic beverage, a narcotic, hypnotic or other drug, or any combination of such substances, or because of the reckless operation by him of such motor vehicle.”

It was enacted in 1927. Acts 42 G.A., chapter 119. It was entitled “An Act to amend the law * * * to limit the civil liability of owners and operators of automobiles.” Its provisions were again considered in 1969 when the words “an alcoholic beverage, a narcotic, hypnotic or other drug, or any combination of such substances” were substituted for the original words “intoxicating liquor”. Acts 63 G.A., chapter 205, section 4.

Here, as in the lower court, plaintiffs-appellants assert our guest statute violates equal protection in that the classification made between automobile guests and paying passengers is not rational. In other words, is our guest statute classification rationally based?

No claim is made that a guest’s right to sue his host for ordinary negligence is a fundamental right. Therefore the traditional equal protection standard must be applied. The statute must be liberally construed with a view to promote its objects. Murray v. Lang, 252 Iowa 260; 265, 106 N.W.2d 643, 646, and citations.

Plaintiffs have assumed a heavy burden as the following propositions are well established. Ordinarily, statutes, with notable exceptions not here involved, regularly enacted by the legislature will be accorded a strong presumption of constitutionality and all reasonable intendments must be indulged in favor of the validity of the legislation attacked. One who challenges legislation on constitutional grounds has the burden to negate every reasonable basis upon which the statute may be sustained. Where the constitutionality of a statute is merely doubtful or fairly debatable, the courts will not interfere. Thus a statute will not be declared unconstitutional unless it clearly, palpably and without doubt, infringes the constitution. Hearth Corporation v. C-B-R Development Co., Inc., Iowa, 210 N.W.2d 632, 636, 637; State v. Vick, Iowa, 205 N.W.2d 727, 729, and the many authorities cited in these opinions. The legislature is given wide discretion in defining the limits of classes when a statute involves classification of persons or things. If a classification is reasonable and operates equally upon all within the class, it is a valid classification. Brown Enterprises, Inc. v. Fulton, Iowa, 192 N.W.2d 773, 776 and citations.

The judicial branch of the government has no power to determine whether legislative Acts are wise or unwise, nor has it the power to declare an Act void unless it is plainly and without doubt repugnant to some provision of the Constitution. Graham v. Worthington, supra, 259 Iowa 845, 850, 851, 146 N.W.2d 626, 631.

This court has repeatedly recognized the classification established by the legislature in our guest statute. Its purpose is to protect “the good Samaritan” from liability to free-riding passengers as distinguished from passenger liability when the owner or driver is receiving some definite and tangible benefit. Boge v. Jack Link Truck Line, Inc., Iowa, 200 N.W.2d 544, 546; Anderson v. City of Council Bluffs, Iowa, 195 N.W.2d 373, 375; Nielsen v. Kohlstedt, 254 Iowa 470, 473, 117 N.W.2d 900, 903, and citations.

In Marean v. Petersen, 259 Iowa 557, 565, 144 N.W.2d 906, 911, we say: “Our guest statute, section 321.494, Code, 1962, like most others of its kind, was enacted in order to correct certain well-known evils then existing — protection of the well-meaning good Samaritan owner or operator of an automobile.” It cites Powers v. Hatcher, 257 Iowa 833, 836, 135 N.W.2d 114, 116.

In Lunday v. Vogelmann, Iowa, 213 N.W.2d 904, 907, we considered the question of equal protection as it relates to statutory classification. We stated:

“[T]he classification must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Id. It does not deny equal protection simply because in practice it results in some inequality; practical problems of government permit rough accommodations; and the classification will be upheld if any state of facts reasonably can be conceived to justify it. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-502 (1970). The legislature has wide discretion in deciding classifications. Cedar Mem. Park Cem. Ass’n v. Personnel Assoc., Inc., 178 N.W.2d 343, 350 (Iowa 1970). Our view of the wisdom of the legislation is irrelevant. Peel v. Burk, 197 N.W.2d 617, 619 (Iowa 1972).”

Our guest statute has not heretofore been challenged on the constitutional question of equal protection. That issue however has been litigated in several other jurisdictions as approximately half the states have guest statutes similar to section 321.-494.

A summary of the holdings in other jurisdictions is found in 8 Am.Jur.2d, Automobiles and Highway Traffic, § 472, pp. 36-37:

“The so-called ‘guest’ statutes which merely limit the liability of the owner or operator of a motor vehicle toward his gratuitous guest by requiring a degree of negligence or misconduct greater than ordinary negligence as a condition of the liability of the owner or operator for injuries to such a guest, but which do not wholly deny a gratuitous guest a right of action against the owner or operator of a motor vehicle, have generally been held constitutional. Such statutes are generally sustained as a reasonable exercise of the police power of the state to conserve human life and safety, provided the guest is not deprived of all remedy for a justiciable injury. Such statutes have been held constitutional as against objections that they deny one of due process of law, a remedy at law, or access to the courts, that they deny equal protection of the laws; violate equal privileges and immunities provisions; infringe vested rights; or violate provisions relating to the judicial powers of the state, or with respect to damages or the constitutional right to trial by jury.”

Perhaps the first case involving the constitutionality of a guest statute is Silver v. Silver (1928), 108 Conn. 371, 143 A. 240. It involved a statute very similar to ours. The court held the classification was not violative of the equal protection clause of the constitution. That holding was appealed and affirmed in Silver v. Silver, 280 U. S. 117, 123, 124, 50 S.Ct. 57-59, 74 L.Ed. 221, 226, where the Supreme Court stated:

“ * * *. In this day of almost universal highway transportation by motor car, we cannot say that abuses originating in the multiplicity of suits growing out of the gratuitous carriage of passengers in automobiles do not present so conspicuous an example of what the Legislature may regard as an evil, as to justify legislation aimed at it, even though some abuses may not be hit. (Citations). It is enough that the present statute strikes at the evil where it is felt, and reaches the class of cases where it most frequently occurs.”

Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581 (1931) has been frequently cited for its excellent constitutional discussion of guest statutes. It was contended the classification was without reasonable basis. The court held the Michigan guest statute constitutional. At page 584 of 234 N.W., it is stated:

“ * * *. The law also has social features. It is well known that drivers hesitate to take neighbors for a ride or to assist on his way a weary traveler because of potential liability for injuries. Few, if indeed any, of these features seen to have manifested themselves in the use of other vehicles than motorcars. Perhaps the Legislature also had other reasons for the law. In view of the abundance of personal injury litigation from the operation of motorcars and the conditions readily conceivable as pertinent to the relation of guest passenger in them, which litigation and conditions seem to be substantially absent from the use of other vehicles, it cannot be said that the classification at bar was arbitrary and without reasonable basis.”

Naudzius is cited and followed in the rather recent case of Miller v. Huizinga, 23 Mich.App. 363, 178 N.W.2d 542, which holds the guest statute does not violate due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.

In upholding the constitutionality of the Illinois guest statute the court in Delany v. Badame, 49 Ill.2d 168, 274 N.E.2d 353, 355 (September 30, 1971) stated:

“The rationale of Silver v. Silver has been followed by the courts of ten other States which have considered the constitutionality of guest statutes requiring proof of wilful and wanton conduct, and in all such States, the act has been held constitutional as not granting a special immunity nor making an improper classification. See, Arkansas: Roberson v. Roberson (1937), 193 Ark. 669, 101 S.W.2d 961, ‘wilful and wanton’; Colorado: Vogts v. Guerrette (1960), 142 Colo. 527, 351 P.2d 851, ‘intentional, intoxication or wilful and wanton’; California: Ferreira v. Barham (1964), 230 Cal.App.2d 128, 40 Cal.Rptr. 739, ‘intoxication or wilful conduct’; Delaware: Gallegher v. Davis (1936), 7 WWHarr. 380, 37 Del. 380, 183 A. 620, ‘intentional wilful or wanton’; Kansas: Wright’s Estate v. Pizel (1950), 168 Kan. 493, 214 P.2d 328, ‘gross wanton negligence’; Ohio: Smith v. Williams (1935), 51 Ohio App. 464, 1 N.E.2d 643, ‘wilful or wanton misconduct’; Oregon: Perozzi v. Ganiere (1935), 149 Or. 330, 40 P.2d 1009, ‘intentional or gross negligence or intoxication’; South Carolina: Fulghum v. Bleakley (1935), 177 S.C. 286, 181 S.E. 30, ‘intentional or heedless’; Texas: Campbell v. Paschall (1938), 132 Tex. 226, 121 S.W.2d 593, ‘intentional or heedless’; and Washington: Shea v. Olson (1936), 185 Wash. 143, 53 P.2d 615, ‘intentional or gross negligence or intoxication’.

“There are guest statutes in Idaho, Indiana, Iowa, Montana, Nevada, North Dakota, South. Dakota, Utah, Vermont and Wyoming, but no cases involving the constitutionality of the statute. * *

See also Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (1967) and Harlow v. Ryland, 8 Cir., 172 F.2d 784 (1949). Like the many cited cases, supra, each holds the guest statute involved does not violate the equal protection clause.

Plaintiffs in their brief rely entirely on the holding in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 1973). On submission of this appeal it stood alone as a one-case minority holding that a guest statute is unconstitutional as a violation of equal protection. It cites no authority outside its jurisdiction. It indicates an attack on the wisdom of the legislative Act. Its reasoning is unsound unless it can be said the conclusion is based on section 1714 of the California Civil Code which provides: “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person. * * * .” Iowa has no such statute.

Brown v. Merlo, supra, is analyzed and its unsound reasoning demonstrated in Tisko v. Harrison, Tex.Civ.App.1973, 500 S.W.2d 565. After considering the United States Supreme Court holding in Silver v. Silver, supra, and those of the many cited state courts, the Texas guest statute was held constitutional as against claimed denial of equal protection.

Since submission of this appeal the Kansas Supreme Court in Henry v. Bauder, Kan., 518 P.2d 362 (1974), by a four to three opinion has agreed with the holding in Brown v. Merlo, supra. In doing so it overruled three earlier cases upholding the constitutionality of the Kansas guest statute on other grounds. The dissent relied on the established majority rule.

The more recent case of Johnson v. Hassett, N.D., 217 N.W.2d 771, filed March 29, 1974, declines to follow the holding of Brown v. Merlo that the guest statute violates the equal protection clause of Amendment 14, United States Constitution. The North Dakota Supreme Court therein recognizes the Supreme Court’s holding in Silver v. Silver remains unchanged. However, the North Dakota court holds its guest statute violates the equal protection clause of the state’s broad constitutional provisions. Unlike the Iowa equal protection clause, that of North Dakota does not set out substantially the same limitations as Amendment 14.

The North Dakota court specifically bases its conclusion on the terms of that state’s constitution, its recently re-enacted statute declaring liability for ordinary negligence and the adoption of the comparative-negligence law. Thus it is readily distinguishable from the case at bar.

The United States Supreme Court and the many cited State Supreme Courts have ruled guest statutes constitutional. If Silver v. Silver, supra, is to be reversed we must acknowledge the Supreme Court’s exclusive right to do so. We believe the overwhelming majority state court holdings also dictate an affirmance in this case.

Plaintiff’s appeal for a change of our guest statute is made in the wrong forum. It should be addressed to the legislature. We repeat what we said in Hessler v. Ford, 255 Iowa 1055, 1059, 125 N.W.2d 132, 134:

“Plaintiff makes an impassioned argument against the guest statute. We will answer him in the words of the trial court. ‘Regardless of the legislative objects, good or bad, the so-called Guest Statute does appear in nearly all State Codes today. This is something that can only be corrected by the legislature.’ The legislature at least is in a position to do something about it. We are not.”

We hold plaintiffs have failed to establish section 321.494 is clearly, palpably and without doubt unconstitutional as claimed by them.

We affirm the ruling- and order of the lower court.

Affirmed.

LeGRAND, REES and UHLENHOPP, JJ., concur. HARRIS, J., concurs in result.

Special concurrence by LeGRAND, J., joined in by UHLENHOPP and HARRIS, JJ-

Dissent by McCORMICK, J., joined in by MASON, RAWLINGS AND REY-NOLDSON, JJ.