Emberson v. Buffington

• Decision Date: 28 October 1957
• Docket Number: No. 5-1357,5-1357
• Citation: 228 Ark. 120,306 S.W.2d 326
• Parties: Martha EMBERSON et al., Appellants, v. Joe BUFFINGTON, Special Administrator, et al., Appellees.
• Court: Arkansas Supreme Court

Page 326

306 S.W.2d 326

228 Ark. 120

Martha EMBERSON et al., Appellants, v. Joe BUFFINGTON, Special Administrator, et al., Appellees.

No. 5-1357.

Supreme Court of Arkansas.

Oct. 28, 1957.

Rehearing Denied Nov. 25, 1957.

Donald Poe, Waldron, for appellants.

Hardin, Barton, Hardin & Garner, Ft. Smith, for appellees.

HARRIS, Chief Justice.

This appeal involves the constitutionality of Section 75-915, Ark.Stats. (1947) Ann., which was passed by the 1935 General Assembly as Act 179. The pertinent part of this statute which is under attack, provides as follows:

'* * * And in no event shall any person related by blood or marriage within the third degree of consanguinity or affinity to such owner or operator, or the husband, widow, legal representative, or heirs of such person, have a cause of action for personal injury, including death resulting therefrom, against such owner or operator while in, entering, or leaving such motor vehicle, provided this act [section] shall not apply to public carriers.'

Dave Buffington, on September 7, 1955, was the owner of, and operating on the highway, a 1950 Chevrolet, on his way from Waldron to Benton. Riding with him as passengers were his wife, Julia Buffington, his mother-in-law, Mrs. Martha Emberson, his father-in-law, Horatio B. Emberson, his sister-in-law, Bertha West, and his nephew, Donald Ray West, a minor. During the course of the journey, the automobile was wrecked, and subsequent thereto, complaints for damages were filed against Buffington by Martha Emberson, Bertha West and Leon West, her husband, Leon West as administrator of the estate of Horatio B. Emberson (who died December 24, 1955), Leon and Bertha West as next friends of Donald Ray West, a minor, and Leon West in his own right. The Logan Circuit Court dismissed the complaints on the basis of the language in the statute quoted above. From such order of dismissal comes this appeal.

Section 13 of Article 2 of the Arkansas Constitution (1874) provides as follows:

'Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformable to the laws.'

Oddly enough, though the statute in question was passed over twenty-two years ago, the constitutionality of same has not been attacked in any case reaching this Court. In the case of Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961, this Court passed upon the validity of Act 61 of 1935, commonly known as the 'Guest Liability Act', (Sec. 75-913, Ark.Stats.Ann.), and made mention of Act 179; under the facts in that litigation, however, it was not necessary to pass upon the validity of Act 179 in disposing of the case. The two acts are very similar. Section 75-913 (Act 61) provides as follows:

'No person transported as a guest in any automotive vehicle upon the public highways of this State shall have a cause of action against the owner or operator of such vehicle for damages on account of any injury, death or loss occasioned by the operation of such automotive vehicle unless such vehicle was wilfully and wantonly operated in disregard of the rights of the others' ¹.

The language in the first part of Section 75-915 (Act 179) reiterates the intent of Section 75-913, and then proceeds to add the language quoted at the outset of this Opinion. In the Roberson case, supra, the late Justice Frank G. Smith, in a very comprehensive opinion, discussed the constitutional provisions from other states which are similar to the provisions of our own constitution herein cited. In the Oregon case of Stewart v. Houk, 127 Or. 589, 271 P. 998, 999, 272 P. 893, 61 A.L.R. 1236, the Oregon Supreme Court held unconstitutional a statute of that state which provided that the 'acceptance of a free ride as a guest in a motor vehicle shall be presumed to be a waiver of said guest for liability of accidental injury caused by (the) owner or driver of such motor vehicle.' The act was held to be violative of Section 10, Article I, of the Oregon constitution. On rehearing, the attention of the Oregon court was called to the Connecticut case of SILVER V. SILVER, 108 CONN. 371, 143 A. 240, 65 A.L.R. 943.² Justice Smith quoted the Oregon opinion on rehearing as follows [193 Ark. 669, 101 S.W.2d 964]:

'* * * The court interpreted the act as freeing the host from liability to a nonpaying guest for injury caused by ordinary negligence only. * * * Since the act preserved liability in instances where the injury was inflicted intentionally, heedlessly, or through reckless disregard for the rights of others, and withheld liability only to a nonpaying guest for ordinary negligence, the court reasoned that the purpose of the act was to fix the measure of care a host owed to his guest. * * *

'In our previous decision we pointed out what we believe are unreasonable features of the Oregon act. It seems to us that these identify our act, not as an effort of the police power to regulate the operation of automobiles by prescribing the duty of host to guest, but as one wherein this element of the situation remains untouched, and the sole change effected is the denial of the remedy to the injured guest. We are persuaded to this conclusion by the fact that all injured guests are denied access to the courts, regardless of their capacity or incapacity to care for themselves, and regardless of the degree of carelessness exhibited by the injuring act. Such being the purpose of the act, we felt it was in conflict with article 1, § 10, of our Constitution. The Connecticut Constitution contains a similar provision. Article 1, § 12. No contention, apparently, was advanced in the Connecticut court that the act violated this constitutional guaranty, and the decision makes no mention of that clause. The reason for this silence, no doubt, lies in the fact that, since the Connecticut act prescribes a degree of care which was deemed reasonable, and thus accomplishes an objective, within the police power of the state, article 1, § 12, was inapplicable. Such provisions, as we pointed out before, prohibit the Legislature from withholding a remedy, where the breach of a well-established duty has injured one who now seeks relief. In our case, the act does not endeavor to readjust the duty, but attempts to abolish the remedy; in the Connecticut case, the act revised the duty, and afforded redress to all injured through a breach thereof.

'We find no conflict between the Connecticut decision and the one we previously announced. * * *'

Justice Smith then said:

'* * * It will thus be observed that the Supreme Court of Oregon in effect approved the Connecticut case, but distinguished the one case from the other upon the difference in the provisions of the statutes construed, one of which wholly denied the right to sue, while the other prescribed the conditions upon which the suit might be maintained. In this connection it may be said that section 10 of article 1 of the Oregon Constitution, and section 12 of article 1 of the Connecticut Constitution, referred to in the Oregon opinion, were said to be, and in fact are, similar, and neither is substantially different from section 13, of article 2 of our Constitution, all being to the effect that every person is entitled to a certain remedy in the law for all injuries or wrongs he may receive in his person, property, or character. * * *'

Further:

'* * * If this Connecticut case of Silver v. Silver is sound law, as the Supreme Court of Oregon conceived it to be (in which view we concur), it is decisive of the constitutionality of our Act No. 61. In that case the Supreme Court of Errors of Connecticut upheld as constitutional a statute of that state which relieved the owner or operator of an automobile from liability to a guest 'unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.' * * *'

Justice Smith also cited the Delaware case of Coleman v. Rhodes, 5 W.W.Harr. 120, 35 Del. 120, 159 A. 649, wherein the Supreme Court of Delaware declared unconstitutional a statute of that state relieving the operator or owner of a motor vehicle from any liability whatsoever for injuries suffered or sustained by any person while riding with the owner or in the owner's car free of charge. The same court, in the latter case of Hazzard v. Alexander, 6 W.W.Harr. 212, 36 Del. 212, 173 A. 517, held valid a subsequent statute which provided there should be no cause of action against an operator of an automobile for death of, or damage to, a gratuitous guest unless the accident was intentional or caused by wilful or wanton disregard of the rights of others. Justice Smith then made this pertinent observation:

'* * * Under the reasoning of these and other cases cited in the note to the text quoted, it might be that Act No. 179 is unconstitutional, whereas Act No. 61 is valid; the difference being that Act No. 179 denies the right of recovery to certain persons under any circumstances, whereas Act No. 61 denies the right of recovery to all persons riding as guests 'unless such vehicle was wilfully and wantonly operated in disregard of the rights of others.' ³ Section 1. But if Act No. 61 is constitutional and is applicable to the facts of this case, it is unnecessary to consider Act No. 179 or to pass upon its constitutionality, for the reason that Act No. 61 defeats a recovery in this case; it not being alleged or shown that appellant had willfully and wantonly operated his car in disregard of the rights of others. * * *'

Appellee cites the case of Tilghman v. Rightor, 211 Ark. 229, 199 S.W.2d 943, in which case this Court approved an instruction that had been given to the jury quoting Act 179 in its entirety. However, that case involved hitchhikers, unrelated to the driver or owner of the vehicle,...