Harlow v. Ryland, 13821.

• Decision Date: 28 February 1949
• Docket Number: No. 13821.,13821.
• Citation: 172 F.2d 784
• Parties: HARLOW v. RYLAND.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F.2d 784 (1949)

HARLOW v. RYLAND.

No. 13821.

United States Court of Appeals Eighth Circuit.

February 28, 1949.

Hendrix Rowell, of Pine Bluff, Ark. (Rowell, Rowell & Dickey, of Pine Bluff, Ark., and William J. Kirby, of Little Rock, Ark., on the brief), for appellant.

Henry W. Gregory, Jr. (Bridges, Bridges, Young & Gregory, and John H. Jones, all of Pine Bluff, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The plaintiff (appellant) has appealed from a judgment dismissing her complaint in an action to recover damages for personal injuries which she sustained while riding as a passenger in an automobile driven by the defendant (appellee), who is her nephew. The effect of the judgment was to uphold the constitutionality of an Arkansas "guest statute," § 1304 of Pope's Digest of the Statutes of Arkansas, being Act 179 of the Acts of the General Assembly of the State of Arkansas for the year 1935.¹ The opinion of the District Court is reported in 78 F.Supp. 488.

The plaintiff is a citizen of Louisiana and the sister of the defendant's father. The defendant is a citizen of Arkansas. On June 17, 1947, the plaintiff, while riding in an automobile owned and operated by the defendant, was injured when it collided with another automobile near the town of Roe, in Monroe County, Arkansas. She alleged in her complaint that the collision and her injuries were due to the wilful and wanton negligence of the defendant, who, over her protests, attempted to pass, in a cloud of dust, a car traveling in the same direction, and collided with an on-coming car. She asked for judgment for $23,790.78.

The defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The sole basis for the motion was that, because of § 1304 of Pope's Digest, Act 179 of 1935, the plaintiff has no cause of action against the defendant, he being her nephew.

The plaintiff, in her response to the defendant's motion to dismiss, asserted that the provision of the statute purporting to deprive her of any cause of action against him for wilful and wanton negligence is unconstitutional, being in contravention of: (1) Article II, Section 13, of the Constitution of the State of Arkansas, which, in part, provides: "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 * * *"; (2) the due process clause of Article II, Section 8, of the Constitution of the State; and (3) the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

The constitutionality of the Arkansas "guest statutes" was attacked in the case of Roberson v. Roberson, 1937, 193 Ark. 669, 101 S.W.2d 961, a suit by a wife against her husband to recover for personal injuries allegedly caused by his negligent operation of the automobile in which she was a guest passenger. It was contended by the plaintiff in that case that the General Assembly of Arkansas was without power to deprive guest passengers in motor vehicles of any of their common law rights and remedies against negligent host drivers. The Supreme Court of Arkansas held that Act 61, Sections 1302 and 1303 of Pope's Digest, was constitutional. The court expressed doubt as to the constitutionality of the provision of Act 179, Section 1304 of Pope's Digest, which deprives guest passengers who are close relatives of the owner or operator of a motor vehicle, of all causes of action against him for personal injuries, regardless of the degree of negligence involved. The court, however, found it unnecessary to decide the question of the constitutionality of Act 179, since the plaintiff was a guest of her husband and had not alleged that the "vehicle was wilfully and wantonly operated in disregard of the rights of the others," and her action was therefore barred by Act 61. It is apparent that Roberson v. Roberson, supra, is authority for the proposition that the Constitution of the State of Arkansas does not preclude the General Assembly from altering common law remedies of gratuitous guest passengers in automobiles.

It is conceded that the constitutionality of the provision of Act 179 which is challenged by the plaintiff in the instant case has never been ruled upon by the Supreme Court of the State of Arkansas. The provision has survived for nearly fourteen years. So far as we are advised, no court in Arkansas has held it to be invalid. It has apparently been assumed to be the law by the bench and bar of the State since the decision in the Roberson case. See Tilghman v. Rightor, 211 Ark. 229, 199 S.W.2d 943, 945. Counsel for the plaintiff, who are members of the Arkansas bar, state in their brief that the Supreme Court of Arkansas in the Roberson case "has plainly indicated that it will hold Act 179 unconstitutional, if and when the question is brought before it." The force of this assertion is much impaired by the fact that, while the courts of the State were available to the plaintiff and by bringing her action in a state court she could readily have secured a definitive ruling from the State Supreme Court, she nevertheless chose to bring her action in a federal court.

If the constitutionality of Act 179 had been challenged by a declaratory judgment action, the dismissal of the complaint would be sustained "on the ground that, in the appropriate exercise of the court's discretion to refrain from deciding doubtful questions of state constitutional law, relief by way of a declaratory judgment should have been denied without consideration of the merits." Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301, 302, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407. See, also, Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 89 L.Ed. 1725.

In Meredith v. Winter Haven, 320 U.S. 228, 234-236, 64 S.Ct. 7, 88 L.Ed. 9, the Supreme Court specified the exceptional circumstances under which federal courts will exercise the discretionary powers of courts of equity in declining to decide doubtful questions of state law. The court said page 236 of 320 U.S., page 12 of 64 S.Ct., 88 L.Ed. 9:

"* * * So too a federal court, adhering to the salutary policy of refraining from the unnecessary decision of constitutional questions, may stay proceedings before it, to enable the parties to litigate first in the state courts questions of state law, decision of which is preliminary to, and may render unnecessary, decision of the constitutional questions presented. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, ...