Duerst v. Limbocker

• Decision Date: 01 August 1974
• Citation: 525 P.2d 99,269 Or. 252
• Parties: Marjorie V. DUERST, Appellant, v. Catherine L. LIMBOCKER, Respondent.
• Court: Oregon Supreme Court

Page 99

525 P.2d 99

269 Or. 252

Marjorie V. DUERST, Appellant, v. Catherine L. LIMBOCKER, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Briefs March 15, 1974.

Decided Aug. 1, 1974.

Leo Levenson, Marvin S. Nepom and Roscoe C. Nelson Jr., Portland, filed a brief for appellant.

Thomas Sauberli and Frederic P. Roehr of Vergeer, Samuels, Roehr & Seek, Portland, filed a brief for respondent.

O'CONNELL, Chief Justice.

Plaintiff was injured while riding in defendant's automobile. She alleged in her complaint that she was 'riding as a guest passenger without payment to defendant' and that defendant 'was negligent' in various respects. Defendant demurred to the complaint on the ground that under ORS 30.115, ¹ Oregon's Guest Passenger Statute, 'no person transported as a guest passenger without payment shall have a cause of action for damages for personal injury upon ordinary negligence.' The trial court for his guest. Secondly, the statute refused to plead over. The trial court then entered a judgment for defendant from which plaintiff now appeals.

Plaintiff's sole contention on appeal is that her complaint should be declared sufficient because ORS 30.115 is unconstitutional. She argues that the classifications created by this statute deny her the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution and Article I § 20 of the Oregon Constitution.

This challenge follows in the wake of the California Supreme Court's decision highway.' This court, in addition, has avoided statute similar to ORS 30.115. ² Like challenges have recently been adjudicated in several other states. To date, in addition to California, guest passenger statutes have been invalidated in Kansas, North Dakota and Idaho. ³ The Supreme Courts of Texas, Utah and Iowa have sustained comparable statutes of their respective states. ⁴

In determining the constitutionality of ORS 30.115 under the Equal Protection Clause, we apply the test recently reiterated by the U.S. Supreme Court in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971):

"In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. (Citations omitted.) The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. 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.' Royster Guano Co. v. Virginia, 243 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (, 990) (1920)." 404 U.S. at 75, 76, 92 S.Ct. at 253, 30 L.Ed.2d at 229.

Two state policies have been identified as underlying ORS 30.115. First, the statute has been seen as an attempt to prevent collusive lawsuits by barring from the courts those parties who, because of their close personal relationship (which may be inferred from the absence of payment), might arrange for the host driver to falsely confess negligence in order to secure recovery for his guest. Econdly, the statute has been seen as an attempt to protect the generous and hospitable host from being held liable for injuries at the instance of an ungrateful guest. The question is whether the denial of recovery to guest passengers has a fair and substantial relation to either of the foregoing policies.

ORS 30.115 distinguishes between injured persons in two ways relevant to plaintiff's case. First, the statute distinguishes between automobile passengers who pay for their ride and those who ride gratuitously. Second, the statute distinguishes between motor vehicle guests and guests in other contexts. ⁵ It is plaintiff's contention that neither distinction can be justified by the recognized state policies underlying ORS 30.115. Plaintiff argues that the protection of hospitality cannot support these distinctions because non-vehicular guests are not barred by statute from recovery for injuries caused by the host's negligence and because the prevalence of liability insurance renders such considerations irrelevant. It is further argued that the prevention of collusive lawsuits cannot support these distinctions either, because the statute's blanket prohibition bars many valid suits along with fraudulent claims.

Although it may be difficult, if not impossible, to establish that the statute effectively works to prevent collusive lawsuits, ⁶ we are of the opinion that the hospitality rationale supports both distinctions drawn by ORS 30.115. The distinction between a paying and non-paying passenger is a reasonable test for determining whether hospitality has been extended by the host to his guest. Starting from that prpoosition, we noted as early as 1935, in Perozzi v. Ganiere, 149 Or. 330, 351, 40 P.2d 1009, 1017, that the protection of such hospitality was the underlying motivation of the legislature in adopting the guest passenger statute. Quoting Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470 (1934)8 we said:

'* * * 'As the use of automobiles became almost universal, the proverbial ingratitude of the dog that bites the hand that feeds him, found a counterpart in the many cases that arose, where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly, the Legislature, in adopting this act, reflected a certain natural feeling as to the injustice of such a situation. * * *"

We have no basis for concluding that the moral precept or principle of etiquette relied upon by the legislature did not exist when ORS 30.115 was enacted, nor that it does not exist today. It is the prerogative of the legislature to use proscriptive legislation to foster or perpetuate standards of moral or ethical conduct generally accepted as a part of the mores of the community so long as they do not involve invidious categories or fundamental interests. We are not prepared to say that a host would not feel offended by the ingratitude demonstrated by the guest's institution of a lawsuit for the host's failure to exercise care in the course of extending hospitality to the guest by providing him with transportation. We must conclude, therefore, that the rule adopted in ORS 30.115 cannot be said to be 'wholly unrelated to the objective of that statute.' ⁷

In Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973), the California Supreme Court took the position that 'the development of almost universal automobile liability insurance coverage' (106 Cal.Rptr. at 397, 506 P.2d at 221) makes the protection of hospitality rationale no longer a relevant consideration. This does not account for those instances where the host is uninsured against such claims or where his insurance is not sufficient to cover the amount of the judgment entered against him. More important, it assumes that the indignation normally felt by a host whose 'hand has been bitten' does not arise where the host suffers no monetary loss. Again, we are not prepared to say whether this is or is not true.

It is argued that the statute is violative of the Equal Protection Clause because it singles out vehicular guests for separate treatment. The answer is that the legislature.

'* * * may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.' Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 67, 57 L.Ed. 164, 169 (1912).

This brings us to the underlying consideration which is controlling in the disposition of the present case. It is fundamental that the court is not permitted to substitute its ideas of the reasonableness of legislation short of a finding that the legislation is irrational in that it does not implement the...