Bickford v. Nolen

• Decision Date: 27 April 1977
• Docket Number: No. 2,No. 53446,53446,2
• Citation: 142 Ga.App. 256,235 S.E.2d 743
• Parties: Deborah A. G. BICKFORD v. A. M. NOLEN et al
• Court: Georgia Court of Appeals

Page 743

235 S.E.2d 743

142 Ga.App. 256

Deborah A. G. BICKFORD v. A. M. NOLEN et al.

No. 53446.

Court of Appeals of Georgia, Division No. 2.

April 27, 1977.

Rehearing Denied May 10, 1977.

Pye, Groover & Pye, Tom Pye, Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler & Martin, Williston C. White, Harold A. Horne, Jr., Atlanta, for appellees.

SHULMAN, Judge.

Appellant was seriously injured when the automobile in which she was riding went out of control and overturned. The evidence established that the automobile was a convertible, that the detachable convertible top was not in the vehicle, and that the mishap occurred during a heavy rainstorm as the vehicle approached a curve. The jury was charged on the automobile guest rule and returned a verdict in favor of appellee-driver. This appeal follows a denial of a motion for a new trial.

1. In enumeration one appellant challenges the constitutionality and correctness of Georgia's judicially created automobile guest rule, which requires proof of gross negligence on the part of the driver-host as a prerequisite to a guest passenger's right of recovery. Epps v. Parrish, 26 Ga.App. 399, 106 S.E. 297.

A. This court recognizes the conflict in decisions in other states. ¹

B. The Georgia guest rule was judicially established in 1921 in Epps v. Parrish, supra. There the court announced: ". . . (I)n order for the invited guest to recover from the owner and operator of an automobile for an injury received by reason of the negligent driving or handling of the machine, there must be facts pleaded that show gross neglect upon the part of the owner and driver of the machine." Id. at 400, 106 S.E. at 298.

The legislature has never chosen to give statutory status to the guest rule. The rule's development has been strictly that of the original decision and its progeny. Georgia courts have consistently applied the guest rule without being called upon to consider the correctness or constitutionality of the rule. Barnum v. Martin, 135 Ga.App. 712, 219 S.E.2d 341; Hollimon v. Wall, 127 Ga.App. 122, 192 S.E.2d 411, 60A C.J.S. Motor Vehicles § 399.1b., p. 799 n. 38.

The practical effect of the guest rule is to deny non-paying guests and guests not conferring a substantial benefit on the driver-host any remedy at all where the driver has committed acts which constitute ordinary negligence and nothing more. The driver-host is legally liable to a guest-passenger only when guilty of some act constituting gross negligence.

C. Appellant challenges the constitutionality ² of the guest rule because the rule denies to automobile guests injured in an automobile mishap a cause of action based on ordinary negligence, but permits all other persons including guests in other automobiles, paying passengers, other drivers and pedestrians to recover for injuries resulting from ordinary negligence.

Federal and State constitutional requirements as to statutes apply to judicially made rules. Crowder v. Department of State Parks, 228 Ga. 436, 440, 185 S.E.2d 908.

In areas of the law not involving fundamental rights or suspect classifications, the United States Supreme Court has adopted a restrained standard of review for equal protection purposes. "A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' " Reed v. Reed, 404 U.S. 71, 75-6, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), citing Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The Georgia Constitution allows classification ". . . when and only when the basis of such classification bears a direct and real relation to the object or purpose of the legislation, and when thus classified, uniformity upon all those coming within the class satisfies the Constitution. (Cits.)" Simpson v. State, 218 Ga. 337, 338, 127 S.E.2d 907, 908.

Under both State and Federal constitutional standards, we would hold that the guest rule classification scheme must fail. ³

D. Two arguments have been advanced by counsel and by the literature, ⁴ as justification for the guest rule: (1) promotion of hospitality by insulating drivers from lawsuits by ungrateful guests; (2) prevention of collusive lawsuits which might result from the guest-host relationship.

(1) Promotion of Hospitality. Since the enactment of the Georgia Motor Vehicle Accident Reparations Act (Code Ann. § 56-3401b et seq.) requiring minimum mandatory insurance coverage, the guest rule results in protection of insurance companies, not generous hosts, from lawsuits by negligently injured guests. Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212; Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365, 1368; McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14. Although the hospitality rationale may have had validity in 1921 when the guest rule was announced, mandatory liability insurance has destroyed the basis for the argument. Nor can any interest in fostering lower insurance premium rates by not requiring the public to absorb the cost of guest passenger injuries through loss shifting justify the rule. The presence or lack of a guest rule is not a decisive factor in premium computations. See Tipton, "Florida's Automobile Guest Statute," 11 U.Fla.L.Rev. 287, 304-7 (1958).

(2) Prevention of Collusive Lawsuits. "The theory behind this 'compensation' classification appears to be that the driver who gives a free ride to a passenger does so because of a close relationship with his guest; because of the presumed closeness of this relationship, the driver may falsely admit liability so that his guest may collect from the driver's insurance company. To combat this risk of potential fraud, the guest statute eliminates all causes of action in negligence for automobile guests." Brown v. Merlo, supra, 106 Cal.Rptr. at 401, 506 P.2d at 225. See Minkovitz v. Fine, 67 Ga.App. 176, 182, 19 S.E.2d 561.

"By denying all guests' negligence actions against their driver, the guest statute is overinclusive in its sweep and bars all the actions. The judicial system has several means for prevention and discovery of fraud which includes perjury, cross examination under oath and various discovery devices. There is no reason to believe that they would be ineffective for the prevention of collusion in suits by a guest against a host's insurance company. There is no reasonable relationship between the guest statute and its purpose to prevent collusion." Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 at 1369.

Neither the prevention of collusion nor the promotion of hospitality can justify the perpetuation of a constitutionally impermissible classification. The guest rule's denial of the guest's cause of action based on an ordinary negligence theory against the driver-host does not bear a rational relationship to the above objectives, and we feel that if we could we would end the proliferation of this archaic judicial ruling.

E. This court is aware that a number of jurisdictions have declined to declare automobile guest statutes unconstitutional because the state still distinguishes between invitees/licensees and trespassers in property cases. Botsch v. Reisdorff, 193 Neb. 165, 226 N.W.2d 121 (1975); Tisko v. Harrison (Tex.Civ.App.1973) 500 S.W.2d 565; Cannon v. Oviatt, 520 P.2d 883 (Utah 1974).

The guest/host and trespasser/invitee/licensee relationships do not involve the same duties or the same factual situations. "Under the guest statute the automobile host has a negative duty towards his guest of not causing an accident through gross negligence . . . The landowner's duty towards licensees centers around warning him of dangers, but the automobile host's duty looks to the activities of the host in controlling the automobile.

"There are also factual distinctions between an automobile host-guest situation and a landowner-licensee situation. Once inside a moving vehicle, the guest has no means of escaping his host's negligence, but a licensee can leave the landowner's property upon notice of negligent or hazardous activity. The automobile host is in full control of the vehicle unless the accident is caused by a mechanical defect, but the landowner need not be present when the licensee is exposed to danger, and it is impossible for him to control all areas of his property." Thompson v. Hagan, supra, 523 P.2d at 1369. See also W. Prosser, The Law of Torts, § 60 at 382-383 (4th Ed. 1971).

F. Even if we were to agree that the guest rule is constitutionally permissible, we would still decline to follow it.

The guest rule, being judicially created, can be judicially abrogated. Azizi v. Board of Regents of the University System of Georgia,233 Ga. 487, 212 S.E.2d 627. "(C)ourt-made common law rules, not altered by statute or constitution, may be adjusted to different government and different social needs, different from those existing at common law." Crowder v. Dept. of State Parks, 228 Ga. 436, 445, 185 S.E.2d 908, 914 (Felton, Justice, dissenting).

Generally, if a judicial rule is consistent with State and Federal constitutional requirements then whether the rule should be abrogated is a matter of public policy which addresses itself to the legislative, not the judicial branch of our state government. Crowder v. Dept. of State Parks, supra, p. 440, 185 S.E.2d 908. It is apparent, however, that the guest rule is inconsistent with public policy as declared by the state legislature.

The Georgia Motor Vehicle Accident Reparations Act (Code Ann. § 56-3401b et seq.) requires as a matter of public policy the compensation of guests and passengers for personal injuries regardless of fault. Code Ann. §§ 56-3401b, 56-3407b.

The guest rule also contravenes the spirit of Georgia's comparative negligence statute. Code Ann. § 105-603. Cf. McConville v. State Farm Mutual Auto. Ins. Co., 15...