Brewer v. Copeland

• Decision Date: 13 November 1975
• Docket Number: No. 43472,43472
• Citation: 542 P.2d 445,86 Wn.2d 58
• Parties: Brenda BREWER, Appellant, v. Mark D. COPELAND, a minor, and Mid-Century Insurance Co., Respondents, and Matilda TREVINO, an unmarried woman, and Jessie J. Mapelli, a minor, Defendants.
• Court: Washington Supreme Court

Page 58

86 Wn.2d 58

542 P.2d 445

Brenda BREWER, Appellant, v. Mark D. COPELAND, a minor, and Mid-Century Insurance Co., Respondents, and Matilda TREVINO, an unmarried woman, and Jessie J. Mapelli,

a minor, Defendants.

No. 43472.

Supreme Court of Washington, En Banc.

Nov. 13, 1975.

Nashem, Prediletto, Brooks & Schussler, Terry A. Brooks, Yakima, for appellant.

Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, Richard L. Wiehl, Yakima, for respondent Ins. Co.

Salvini & Corless, Michael Corless, Sunnyside, for respondent Copeland.

HOROWITZ, Associate Justice.

This is a host-guest automobile accident case tried to the court. Plaintiff appeals the judgment dismissing her action for damages because of failure to prove gross negligence proximately causing her injuries as required by RCW 46.08.080, Washington's host-guest statute. The principal question is whether the statute is constitutional. We uphold the statute, find no other errors as assigned and affirm the judgment of dismissal.

The relevant facts are these: At approximately 2 a.m., November 14, 1971, defendant Mark Copeland was driving a car on Newquist Road, a public highway in the Satus area of Yakima County, Washington, with a car full of passengers returning from an evening dancing party all had attended. Plaintiff Brenda Brewer was being driven home. Her status as a nonpaying guest is not disputed.

Proceeding east on the Newquist Road just south of the point where that road intersects with Highway 22, the car approached a gradual curve in the road. The night was dark, and the road surface wet with rain. There were no distracting influences in the car and there were no irregularities in Copeland's driving. Copeland was unfamiliar with the road. The posted speed limit in the road area under consideration was 50 miles per hour. There was a posted 'curve sign' giving notice of an impending curve without other warning of an existing hazard requiring a reduction in the posted speed limit to negotiate the curve. Copeland neither saw the curve sign nor the curve ahead. Unaware of the impending curve, he entered the curve at a speed of 50 miles per hour. Instead of following the curve, he proceeded straight ahead, left the roadway and crashed. Plaintiff was seriously injured. She later brought the instant action against defendant Copeland and Mid-Century Insurance Company, the liability insurance carrier, the latter having claimed the policy did not cover the accident.

The court dismissed plaintiff's action. It found Copeland guilty of ordinary negligence only and not guilty of gross negligence. She appeals.

Her assignments of error revolve about the issue of gross negligence. RCW 46.08.080 provides:

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 the accident was intentional on the part of the owner or operator, or the result of said owner's or operator's gross negligence or intoxication, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action; Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while it is being demonstrated to a prospective purchaser. ¹

Plaintiff contends the statutory gross negligence requirement denies her equal protection under the federal and state constitutions. U.S.Const. amend. 14; Const. art. 1, § 12. In support she advances arguments in many respects similar to those relied on in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973), invalidating California's host-guest automobile statute. Those arguments are summarized in Cannon v. Oviatt, Utah, 520 P.2d 883 (1974). The California statute permits a nonpaying automobile guest to recover against his host driver only for ". . . the intoxication or willful misconduct of the driver." Brown v. Merlo, supra, 8 Cal.3d at 862, n. 3, 106 Cal.Rptr. at 393, 506 P.2d at 217. In that respect, the statute differs from RCW 46.08.080 which also permits recovery for the host driver's gross negligence.

In contending RCW 46.08.080 violates plaintiff's equal protection rights, plaintiff undertakes a heavy burden of persuasion. Justice v. Gatchell, Del.Supr., 325 A.2d 97, 102 (1974). She must overcome the presumption of constitutionality beyond a reasonable doubt. Aetna Life Ins. Co. v. Washington Life and Disability Ins. Guar. Ass'n, 83 Wash.2d 523, 520 P.2d 162 (1974); State v. Perrigoue, 81 Wash.2d 640, 503 P.2d 1063 (1972); Water Dist. No. 105, King County v. State, 79 Wash.2d 337, 485 P.2d 66 (1971). When a statutory classification is challenged, it is presumed that facts sufficient to justify the classification exist. Sonitrol Northwest, Inc. v. Seattle, 84 Wash.2d 588, 528 P.2d 474 (1974); Aetna Life Ins. Co. v. Washington Life and Disability Ins. Guar. Ass'n, supra; State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973); State v. Persinger, 62 Wash.2d 362, 382 P.2d 497 (1963). Merely challenging the wisdom or expediency of the statute is not enough. Washington State School Directors Ass'n v. Dept. of Labor & Indus., 82 Wash.2d 367, 510 P.2d 818 (1973); State v. Conifer Enterprises, Inc., 82 Wash.2d 94, 508 P.2d 149 (1973); State v. Scheffel, 82 Wash.2d 872, 514 P.2d 1052 (1973); Petstel, Inc. v. County of King, 77 Wash.2d 144, 459 P.2d 937 (1969). A change in public opinion concerning the desirability of the statute is insufficient. State v. Grabinski, 33 Wash.2d 603, 206 P.2d 1022 (1949).

If the policy is fairly debatable, the legislative remedy for dealing with the evil involved is within its competence. Aetna Life Ins. Co. v. Washington Life and Disability Ins. Guar. Ass'n, supra; State v. Scheffel, supra; Reesman v. State, 74 Wash.2d 646, 445 P.2d 1004 (1968). In dealing with that evil, the legislature is not bound by decisional law or by the doctrine of stare decisis. It may change that law as, for example, the legislature did when it abolished the theretofore existing right of action for gross negligence in host-guest automobile cases (Laws of 1933, ch. 18, p. 145; Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936)); and when it later reinstated the right of action for gross negligence by the nonpaying guest against his host (Laws of 1957, ch. 132, p. 484), and then when it repealed the host-guest automobile statute by Laws of 1974, 1st Ex.Sess., ch. 3, p. 2.

Moreover, plaintiff's burden is not diminished by the fact that Shea v. Olson, supra, upheld Washington's first host-guest statute (Laws of 1933, ch. 18, p. 145) against an equal protection attack. See also, Nogosek v. Truedner, 54 Wash.2d 906, 344 P.2d 1028 (1959). In Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972), the court, in rejecting the argument the abolition of the doctrine of interspousal immunity would encourage fraud, pointed out the legislature could deal with the fraud problem as it had in enacting RCW 46.08.080, .085, .086--an indirect recognition of the continued validity of those statutes. Moreover, the majority of the cases in this country have upheld the constitutionality of legislative distinctions between paying and nonpaying guests in automobile host-guest statutes. Some of these statutes have abolished the nonpaying guest's right of action for negligence, ordinary or gross, and others have permitted the nonpaying guest to recover upon a showing of gross negligence. See illustrative cases cited in the margin. ² Although in several cases the courts have followed Brown v. Merlo, supra, ³ the majority of cases have refused so to do, finding the rationale of Brown unpersuasive. ⁴

Plaintiff basically contends RCW 46.08.080 irrationally singles out for adverse treatment the nonpaying automobile guest in a car driven on a public highway of this state; that such action violates equal protection because it does not have ". . . 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, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); State v. Perrigoue, supra.

The object or justification for host-guest statutes as discussed by plaintiff following Brown are traditionally two: promotion of driver hospitality and prevention of collusion in automobile accident cases. First, the statute insulates 'generous drivers from lawsuits instituted by ungrateful guests who have benefited from a free ride.' Secondly, the statute helps eliminate 'collusive lawsuits, in which a host fraudulently confesses negligence so as to permit his guest- --presumably a friend or relative--to collect from the host's insurance company.' Brown v. Merlo, 8 Cal.3d at 864, 106 Cal.Rptr. at 394, 506 P.2d at 218.

In support of her claim there is no constitutional justification for the statute's classification scheme, she argues (1) there is no rational basis for protecting the paying guest and withdrawing that protection from the nonpaying guest; (2) the increased use of automobile liability insurance coverage negates the idea that initiation of a lawsuit by an injured passenger constitutes an act of ingratitude toward the host driver; (3) the constitutionality of a statute predicated upon the existence of a particular set of facts when the statute was enacted may be challenged when those facts have ceased to exist--the case here; (4) analogizing from cases invalidating the doctrine of charitable immunity (Friend v. Cove Methodist Church, Inc., 65 Wash.2d 174, 396 P.2d 546 (1964); Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765 (1953)), and from cases increasing the land-occupier's duty of care to licensees (Potts v. Amis, 62 Wash.2d 777, 384 P.2d 825 (1963); Ward...