Neu v. Grant, 76-1009

• Decision Date: 12 January 1977
• Docket Number: No. 76-1009,76-1009
• Parties: Nina C. NEU, Plaintiff-Appellant, v. Frank GRANT and Lorna Marie Grant, husband and wife, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 281

548 F.2d 281

Nina C. NEU, Plaintiff-Appellant, v. Frank GRANT and Lorna Marie Grant, husband and wife Defendants-Appellees.

No. 76-1009.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Nov. 16, 1976.

Decided Jan. 12, 1977.

Terry W. Mackey, Cheyenne, Wyo. (Sharon A. Lyman, Student Intern, Cheyenne, Wyo., on the brief), of Urbigkit, Halley, Mackey & Whitehead, Cheyenne, Wyo., for plaintiff-appellant.

J. E. Vlastos of Cardine, Vlastos & Reeves, Casper, Wyo., for defendants-appellees.

Before LEWIS, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Nina C. Neu (Neu), plaintiff below, appeals from a judgment on a jury verdict denying her monetary recovery in a diversity action against Frank Grant and Lorna Marie Grant, husband and wife (Grant), arising out of injuries she sustained in a motor vehicle crash. A brief recital of the factual background and issues on appeal follows.

On April 29, 1971, close to midnight, Neu was a guest passenger in a 1967 Plymouth Fury owned by Grants, then being operated by Lorna Marie Grant, traveling westwardly on Poison Spider Road in Casper, Wyoming. At that time and place a pickup truck owned and operated by Frank Grant was traveling in the same direction. The Grants proceeded to engage in a speed contest between the two vehicles on the two-lane hardtop roadway which was rough in spots, particularly because of the existence of some large chuckholes. While attempting to overtake the vehicle operated by her husband, Lorna Marie Grant lost control of the Plymouth. It skidded sideways for a long distance, rolled over at least one complete revolution and came to rest on its wheels off of the roadway. Neu alleged that the accident was caused by the negligence of Frank Grant and the gross negligence of Lorna Marie Grant.

Neu contends that the jury verdict resulted from an "unlawful" instruction, i. e., that Neu was a guest in the Plymouth Fury and that, in light of the Wyoming Guest Statute, W.S. 31-233, ¹ it was obligatory that Neu prove that Lorna Marie Grant was grossly negligent. Following a pre-trial conference, Neu filed a Motion to Strike Paragraph 6 of Grant's Answer to her Amended Complaint, which alleged that the Wyoming Guest Statute barred recovery, "upon the grounds that Wyoming's guest statute is unconstitutional, denies equal protection of law under the Constitution of the State of Wyoming and the Constitution of the United States of America and should be stricken." (R., Vol. I, p. 88.) The sole reference in this record to the proceedings had on the Motion to Strike is that contained in the transcript recited that immediately prior to trial ". . . the court and counsel at an informal pretrial meeting immediately prior to the commencement of this action, have discussed the Plaintiff's Motion to Strike, together with the Plaintiff's Motion for Partial Summary Judgment . . . the Court has heard and considered the arguments of counsel, and each of said motions is hereby overruled." (R., Vol. II, p. 3.)

The parties agree that the Wyoming Supreme Court has not rendered a decision determinative of the constitutional challenges raised to the Wyoming Guest Statute. Where diversity jurisdiction exists, such as here, the difficulties of ascertaining what the highest court in a state may subsequently determine the state law to be does not, in and of itself, afford sufficient grounds for the federal court to decline to exercise diversity jurisdiction to decide the state law issues. Holt v. King, 250 F.2d 671 (10th Cir. 1957). However, an adjudication of the statute based upon the applicability of state constitutional provisions is not controlling on the highest court of the state. The final, definitive, binding decision is that of the highest court of the state, under the doctrine of "outcome determination" proclaimed in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 74-75, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Neu, having chosen the federal forum, is content on appeal to argue that "The Wyoming Supreme Court has not yet rendered a decision on W.S. 31-233, but it, too, would in all likelihood strike the statute, on state as well as Federal equal protection grounds." (Brief of Appellant, p. 12.)

On appeal Neu attacks the judgment-verdict on the basis that the Wyoming Guest Statute is constitutionally infirm in that: (1) it denies Neu equal protection of the law under the Fourteenth Amendment to the United States Constitution and Article I, Section 34, and Article III, Section 27 of the Wyoming Constitution, (2) it deprives Neu of any opportunity to recover damages for her personal injuries from those responsible for their infliction, which does not lend any reasonable furtherance of any object protective of the public welfare, and denies Neu due process of law in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section 6, of the Wyoming Constitution, and (3) by effectively denying Neu recovery of money damages, she is barred from the "courthouse door" in violation of Article X, Section 4, of the Wyoming Constitution, and Article I, Section 8, of the Wyoming Constitution.

I.

Throughout Neu's brief on appeal, attack is made on the vitality of Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929) which upheld the Connecticut Guest Statute which barred recovery by a guest in a motor vehicle unless it was being operated recklessly resulting in an accident and injuries to the guest. The court upheld the statutory denial of recovery by the guest unless proof be tendered that the driver intentionally caused the accident or operated the vehicle with reckless disregard for the rights of others. The challenge was made that the statute created an unconstitutional distinction between gratuitous and paying passengers as well as between passengers in automobiles and those in other types of vehicles. The Court held that Connecticut was empowered to regulate the use of vehicles; that the Guest Statute created a regulation permissibly applicable in that it reaches all in the class to which it applies; and that the statutory classifications are not arbitrary, without basis or violative of equal protection of the law. The Wyoming Guest Statute meets all of the condemned classifications attacked in Silver.

Neu refers to the Silver, supra, decision in her opening brief on appeal as follows: "an old Supreme Court case" (p. 6); other cases cited above have distinguished Silver, ignored it, or relied on state equal protection provisions" (p. 7); "Factors, such as the great lengths of time that have passed since that decision and the very limited extent of the Supreme Court's analysis, made for disposal of the case, which is a relic that cannot stand in the way of contemporary understanding of the equal protection clause of the 14th Amendment as provided in such cases as (Cases are here cited.) . . . Indeed Silver, as the only real obstacle to invalidation, is a weak basis on which to found equal protection." (p. 7); "In a shallow analysis . . . Silver (found) . . . that all automobile guests were treated equally and that the state could, in the exercise of its police power, regulate automobile traffic, and that was enough to satisfy the equal protection clause of the 14th Amendment . . . Silver . . . did not at all apply the test of whether the classification had any rational or reasonable relationship to the purpose of the legislation . . . when Silver is removed from the picture, as it should be, there is no reasonable way the guest statute can be upheld." (pp. 7, 8); "The case not having been adequately presented to the Silver court, surely the Supreme Court today would not give the same decision it did in 1929." (p. 11); "Without any dubious contra authority like Silver v. Silver, supra, the Wyoming (Supreme) Court would be all the more quick to hold the Wyoming Guest Statute violative of equal protection of the law." (pp. 13, 14); "However, Silver was expressly limited to the issue of equal protection, and therefore the decision is not relevant to the issue of due process." (p. 18).

Neu's basic attack on the vitality of Silver is anchored to Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973) and subsequent state decisions following its footprints. There, the court held the California Guest Statute unconstitutional on federal constitutional grounds, notwithstanding Silver. Applying the Fourteenth Amendment, the California court reasoned that the passage of time and intervening decisions by the United States Supreme Court had, in effect, rendered Silver a relic standing in the way to contemporary interpretation and application of Fourteenth Amendment equal protection rights.

To be sure, as Neu points out, a substantial number of courts have followed the route mapped by Brown v. Merlo, supra. Primes v. Tyler, 43 Ohio St.2d 195, 331 N.E.2d 723 (1975); Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974); Laakonen v. Eighth Judicial District, 538 P.2d 574 (Nev.1975); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974). Contra : Behrns v. Burke, 229 N.W.2d 86 (S.Dak.1975); Richardson v. Hansen, 527 P.2d 536 (Colo.1974); Justice v. Gatchell, 325 A.2d 97 (Del.1974); Keasling v. Thompson, 217 N.W.2d 687 (Ia.1974); Cannon v. Oviatt, 520 P.2d 883 (Utah 1974). The United States Supreme Court dismissed the challenge to the constitutionality of the Utah Guest Statute on equal protection grounds as not presenting a substantial federal question. Cannon v. Oviatt, 419 U.S. 810, 95 S.Ct. 24, 42 L.Ed.2d 37 (1974), rehearing denied, 419 U.S 1060, 95 S.Ct. 645, 42 L.Ed.2d 658 (1974). Such constitutes an adjudication on the merits. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).

II.

Subsequent to the trial of this case, filing of the record on appeal and the respective briefs of the parties, Silver v. Silver, supra, was...