Botsch v. Reisdorff, 39581

Citation193 Neb. 165,226 N.W.2d 121
Decision Date18 February 1975
Docket NumberNo. 39581,39581
PartiesDiane Neeld BOTSCH, Appellant, v. Joseph REISDORFF and Christian Marohn, Appellees.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Under our guest statute, section 39--6,191, R.R.S.1943, the owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in such motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by the driver because of the gross negligence of the owner or operator in the operation of such motor vehicle.

2. The test, under the Fourteenth Amendment to the Constitution of the United States, when a state statute operates to single out a class of people for special treatment, is whether the suspect classification bears some rational relationship to the legitimate purposes of the legislation.

3. In the area of economics and social welfare, a state does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution of the United States simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.'

4. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

5. There is inherent justice in the requirement that one who undertakes to perform a duty gratuitously should not be under the same obligation as one who enters upon the same undertaking for compensation.

6. A distinction between the duty imposed in the case of gratuitous performance of services and the performance of them for hire is to be found running through many fields of law.

7. 'Gross negligence' within the meaning of the motor vehicle guest statute is great and excessive negligence, or negligence in a very high degree. It indicates the absence of even slight care in the performance of a duty.

8. Where several acts of negligence are supported by the evidence, no one act is to be segregated and weighed separately to determine whether or not it constituted gross negligence, instead the several acts are to be considered as a whole.

9. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

10. It is negligence as a matter of law for a motorist to drive an automobile on a highway in such a manner that he cannot stop in time to avoid a collision with an object within the range of his vision.

11. A driver of a motor vehicle should have his automobile under such reasonable control as will enable him to avoid collision with other vehicles, assuming that the drivers thereof are exercising due care.

12. In the determination of whether all the evidence in a specific case is sufficient to submit the issue of gross negligence to the jury we have consistently held that the presence of imminence of danger visible to, known by, or made known to a driver, together with a persistence in negligence heedless of the consequences, are factors to be given material, if not controlling consideration.

William A. Wieland, Healey, Healey, Brown, Wieland & Burchard, Fredrick L. Swartz, Lincoln, for appellant.

Robert A. Barlow, Lincoln, Ray C. Simmons, Fremont, for appellees.

Heard before WHITE, C.J, and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an action growing out of a guest passenger automobile accident arising from an automobile-tractor collision in Butler County, Nebraska. Plaintiff and defendant Reisdorff stipulated that judgment be entered in favor of plaintiff against Reisdorff in the sum of $8,500, and such judgment was entered by the District Court. The theory of the plaintiff's case is that the acts of negligence alleged in her petition constituted both ordinary and gross negligence. On appeal, the plaintiff challenges the constitutionality of the guest statute, section 39--6,191, R.R.S.1943, under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the comparable and complementary provisions under the Constitution of the State of Nebraska. The issue is also presented as to the sufficiency of the evidence to submit the issue of gross negligence to the jury. The trial court refused to submit this issue and directed a verdict for the defendant Marohn.

We hold that the guest statute does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, nor any provision of the Constitution of the State of Nebraska, and reverse and remand the cause for trial upon the issue of gross negligence.

Our guest statute, section 39--6,191, R.R.S.1943, provides in parts pertinent to the issues here as follows: 'The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in such motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by the driver * * * because of the gross negligence of the owner or operator in the operation of such motor vehicle. For the purpose of this section, the term guest is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefor * * *.'

Motor vehicle guest statutes containing the same essential principles now under constitutional attack, have been adopted in more than one-half of the states, and the principle that automobile owners or operators be relieved from liability to their guests or passengers for ordinary negligent conduct has been judicially imposed in still more states. See Prosser, Torts (4th Ed.), § 34, p. 186. Ever since their inception in the early twentieth century, guest statutes have been under continual attack on both state and federal constitutional grounds similar to those raised in this case. Notwithstanding the attacks, the states and the United States Supreme Court have consistently held statutes such as ours constitutional. See, Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929); Rogers v. Brown, 129 Neb. 9, 260 N.W. 794 (1935). Almost the total thrust of the plaintiff's attack upon the guest statute is a contention that this court should adopt the reasoning and authority of the California Supreme Court in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973). Rather than rest our decision on the simple proposition that Silver is still the law of the land and that we adhere to it, we examine the contentions of the plaintiff which in turn are based upon the argument that modern conditions, social and economic, demand a reconsideration of the Silver rationale and of the other cases and require us to hold our guest statute unconstitutional.

So far as we can determine, since Brown v. Merlo, Supra, courts of six states have considered whether their guest statutes violated the Equal Protection Clause of either the federal or their own Constitution. Four states have held that neither state nor federal Constitution was violated by their guest statutes. Justice v. Gatchell, 325 A.2d 97 (Del., 1974); Keasling v. Thompson, 217 N.W.2d 687 (Iowa, 1974); Cannon v. Oviatt, 520 P.2d 883 (Utah, 1974); Tisko v. Harrison, 500 S.W.2d 565 (Tex.Civ.App., 1973). Two state courts have held their guest statutes unconstitutional, one on grounds that it violated the federal and state Constitutions, Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974), and the other a North Dakota case on grounds that only the state Constitution was violated under its particular constitutional context. Johnson v. Hassett, 217 N.W.2d 771 (N.D., 1974).

The test, under the Fourteenth Amendment to the Constitution of the United States, when a state statute operates to single out a class of people for special treatment, is whether the suspect classification bears some rational relationship to the legitimate purposes of the legislation. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), a very recent case, the United States Supreme Court said: 'In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' * * * 'The problems of government are practical ones and may justify, if they do not require, rough accommodations--illogical, it may be, and unscientific.' * * * 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' * * * But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. * * * It is enough that the State's action be rationally based and free from invidious discrimination.' See, also, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); McGowan v Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 26 L.Ed.2d 16 (1973).

Stated broadly the contention is that a nonpaying guest is singled out for special treatment in that he is denied the cause of action against his host for negligently inflicted injuries. The contention is, following Brown v. Merlo, Supra, that there is no legitimate state interest justifying this classification on the basis of the promotion of hospitality, and the prevention of fraud and collusion. The question, therefore, before the court, under the test pronounced above, is whether the denial of a remedy for negligently inflicted injuries to automobile guests is rationally related to the aforementioned state...

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