Davis v. Cox, 79-306

• Citation: 268 Ark. 78,593 S.W.2d 180
• Decision Date: 11 February 1980
• Docket Number: No. 79-306,79-306
• Parties: Charles D. DAVIS, Individually and as Regular Guardian of Theresa D. Davis, a Minor, Appellants, v. Sondra D. COX and Carl Cox, Appellees.
• Court: Supreme Court of Arkansas

Page 180

593 S.W.2d 180

268 Ark. 78

Charles D. DAVIS, Individually and as Regular Guardian of

Theresa D. Davis, a Minor, Appellants, v. Sondra D. COX and Carl Cox, Appellees.

No. 79-306.

Supreme Court of Arkansas.

Feb. 11, 1980.

Laser, Sharp, Haley, Young & Huckabay, P. A., Little Rock, for appellants.

Haskins, Eubanks & Wilson by Gary Eubanks and James F. Swindoll, Little Rock, for appellee.

STROUD, Justice.

This is a damage suit by a passenger against the driver for injuries sustained in an automobile accident, which was submitted on a motion for summary judgment and a stipulation of all relevant facts. The stipulation would have precluded recovery because of the Arkansas guest statute, but the trial court held the statute void.

On August 1, 1978, appellee Sondra Cox was injured in an automobile accident while a passenger in a car driven by appellant Theresa Davis. The parties stipulated that Sondra Cox was a "guest" in the Davis vehicle at the time of the accident and that Theresa Davis was guilty of simple negligence in the operation of her vehicle, which was the proximate cause of appellee's damages of $25,000.00. Appellants moved for summary judgment based on the Arkansas guest statute, Ark.Stat.Ann. § 75-913 (Repl.1979), which prohibits a "guest" from recovering damages from an owner or operator of a vehicle for injury or loss resulting from an accident in which the operator of the vehicle was guilty of no more than simple, or ordinary, negligence. The trial court found that the guest statute was violative of Article 2, §§ 2, 3 and 18 of the Arkansas Constitution and the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. In addition, the trial court ruled that the guest statute had been repealed by the Arkansas General Assembly by the passage of Act 367 of 1975 which, in pertinent part, provides for the comparison of the fault of the parties in all actions for damages for personal injury or wrongful death or injury to property in which recovery is predicated upon fault. Appellee was awarded damages in the amount of $25,000.00 for her injuries and losses. From that judgment appellants take this appeal, alleging two points for reversal.

I.

THE GUEST ACT IS NOT CONTRARY TO EITHER THE ARKANSAS OR

UNITED STATES CONSTITUTIONS.

The Arkansas guest statute, Ark.Stat.Ann. § 75-913 (Repl.1979), provides as follows:

No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights of the others.

On several occasions this court has been called upon to rule on the constitutionality of our guest statute. Each time we have upheld the statute as not violative of the Arkansas or United States Constitutions. Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937); White v. Hughes, 257 Ark. 627, 519 S.W.2d 70 (1975), appeal dismissed 423 U.S. 805, 96 S.Ct. 15, 46 L.Ed.2d 26; Rone v. Miller, 257 Ark. 791, 520 S.W.2d 268 (1975). Our view on this question was unanimously reaffirmed less than five years ago in White v. Hughes, supra, where we announced our intention to "await the views of the United States Supreme Court on the subject" before altering our position on the equal protection clause and its effect on our guest statute. We think it significant that that court dismissed the appeal of our decision in White v. Hughes, supra, due to "want of a substantial federal question."

There is a presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973); Bush v. Martineau, 174 Ark. 214, 295 S.W. 9 (1927). If it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Stone v. State, supra; Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972).

In determining whether a classification denies equal protection of the law, we have held, pursuant to Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), that 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. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974). Appellants cite the legislative objectives of prevention of collusive lawsuits, promotion of hospitality, Good Samaritanism and encouragement of car-pooling as justification for the classification under attack. Contrariwise, the trial court in his written opinion reasoned that although there may have been a fair and rational legislative purpose when the guest statute was enacted in Arkansas, such factors as the gasoline shortage and the prevalence of liability insurance have caused the guest classification to now be unreasonable and without a fair and rational relation to the legislative objectives sought to be achieved. We acknowledge that legislative classifications can become unreasonable with the passage of time, but we find that the social changes recounted by the trial court have not been sufficiently broad and sweeping to have done so at this time in Arkansas.

Since the California Supreme Court struck down the California guest statute in 1973 in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973), six other state courts have declared their guest statutes unconstitutional, while another half dozen states have repealed theirs. However, the Texas Court of Civil Appeals later upheld their guest statute as not contrary to the equal protection clause and criticized the decision in Brown v. Merlo, supra. Tisko v. Harrison, 500 S.W.2d 565 (Tex.Civ.App.1973). At least four states have followed the decision in Tisko. Brown can be distinguished from Tisko and the present case in that California had previously abandoned the common law tort doctrine that a person's status determines the duty owed him, while Arkansas, Texas, and many other states retain the concept. The guest statute merely extends this doctrine from one's home or real property to his automobile.

It is not our function to rule on the wisdom or practicality of an act of the General Assembly; rather, we must limit ourselves solely to consideration of its constitutionality. Resolving any doubt about our guest statute in favor of constitutionality, as we must, we cannot say that the statute has no fair and rational relation to the objectives of the legislature. Therefore, we hold that the Arkansas guest statute, Ark.Stat.Ann. § 75-913 (Repl.1979), is not violative of Article 2, §§ 2, 3, and 18 of the Arkansas Constitution, nor is it contrary to the Fourteenth Amendment to the United States Constitution.

II.

THE ARKANSAS GUEST STATUTE WAS NOT REPEALED BY ACT 367 OF 1975.

In addition to ruling the guest statute unconstitutional, the trial court also held that it was repealed by Act 367 of 1975. Act 367 (Ark.Stat.Ann. § 27-1764 (Repl.1979)) provides as follows:

. . . In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.

Section 4 of Act 367 expressly repealed Act 303 of 1973 (unrelated to this appeal) and "all other laws inconsistent therewith." As the guest statute was not expressly repealed by Act 367, the trial court must have found that it was repealed by implication. Repeals by implication are not favored in the law, and the repeal will not be allowed unless the implication is clear and irresistible. Rightsell v. Carpenter, 188 Ark. 21, 64 S.W.2d 101 (1933); Babb v. El Dorado, 170 Ark. 10, 278 S.W. 649 (1926). Furthermore, the courts will not adjudge a statute to have been repealed by implication unless a legislative intention to repeal or supersede the statute plainly and clearly appears; the implication must be clear, necessary and irresistible. McDonald v. Wasson, 188 Ark. 782, 67 S.W.2d 722 (1934).

As the General Assembly clearly expressed its intention in Section 4 of Act 367 to repeal Act 303 of 1973, but failed to so mention the Arkansas guest statute, we cannot say that it clearly intended to repeal Ark.Stat.Ann. § 75-913 (Repl.1979). These enactments are not hopelessly at odds, as they must be...