Harrigfeld v. District Court of Seventh Judicial Dist. In and For Freemont County

• Citation: 511 P.2d 822,95 Idaho 540
• Decision Date: 05 July 1973
• Docket Number: No. 11281,11281
• Parties: Dan P. HARRIGFELD et al., Petitioners, v. The DISTRICT COURT OF the SEVENTH JUDICIAL DISTRICT of the State of Idaho, IN AND FOR the COUNTY OF FREEMONT and the Honorable Willard C. Burton, District Judge, Respondents.
• Court: Idaho Supreme Court

Page 822

511 P.2d 822

95 Idaho 540

Dan P. HARRIGFELD et al., Petitioners, v. The DISTRICT COURT OF the SEVENTH JUDICIAL DISTRICT of the State of Idaho, IN AND FOR the COUNTY OF FREEMONT and the Honorable Willard C. Burton, District Judge, Respondents.

No. 11281.

Supreme Court of Idaho.

July 5, 1973.

Dennis M. Olsen, Petersen, Moss, Olsen, & Beard, Idaho Falls, for petitioners.

A. L. Smith, Albaugh, Bloem, Smith & Pike, Idaho Falls, for respondents.

DONALDSON, Chief, Justice.

On August 5, 1971, Dean Sallenger was killed when the motorcycle he was operating collided with a tractor owned by Ira Harrigfeld and Lida Harrigfeld and being operated by their son, Dan P. Harrigfeld. At the time of his death, Sallenger was twenty years of age. He was married to Pamela C. Sallenger and they were the parents of a minor daughter, Pamela R. Sallenger.

On February 23, 1972, Sallenger's widow, and his minor daughter, by Mrs. Sallenger as guardian ad litem, commenced and action against Dan P. Harrigfeld, Ira Harrigfeld and Lida Harrigfeld, alleging that negligence on the part of Dan P. Harrigfeld caused the accident, resulting in Sallenger's death. They sought general and special damages in the amount of $201,607.86. In the complaint, the plaintiffs alleged that they were Sallenger's sole heirs at law.

The Harrigfelds first moved to dismiss the complaint for failure to state a claim on which relief could be granted. They were subsequently permitted to amend this motion to include the contention that the action should be dismissed because the plaintiffs had failed to allege that, at the time of his death, Dean Sallenger was not a minor, as required by the wrongful death statute (I.C. § 5-311) under which the cause of action was being prosecuted. The Harrigfelds also filed a motion to dismiss the complaint for lack of jurisdiction on the ground that the action was being brought and prosecuted by the wife and child of a deceased minor, and that, under the Idaho wrongful death statutes (I.C. §§ 5-310, 311) in effect at the time of Sallenger's death, no such cause of action existed.

The district court Hon. Willard C. Burton, district judge, denied the Harrigfelds' motion to dismiss. The Harrigfelds then petitioned this Court for an alternative writ of review and alternative writ of prohibition, pursuant to I.C. §§ 7-202, 7-401, 7-402. They alleged that in denying their motions to dismiss and in permitting the plaintiffs to continue with their lawsuit, the district court had exceeded its jurisdiction and that they were without an adequate remedy in the ordinary course of law.

An alternative writ of prohibition was issued by this Court and hearing was had following the filing of the plaintiffs' return to the defendants' petition.

The petitioners' grounds for issuance of the Writ are as follows: The Idaho Statute concerning minority, which was in effect at the time of Sallenger's death, placed the age of majority for males at twenty-one years. ¹ Therefore, at the time of his death, Sallenger, at twenty years of age, was a minor according to the statute. Under the wrongful death statutes in effect at the time of Sallenger's death, the only parties with standing to sue for the wrongful death of a minor were his parents or guardian. ² The heirs or personal representative of a decedent were give a cause of action only if the decedent was not a minor. ³ Therefore, petitioners argue, as heirs of a deceased minor, Mrs. Sallenger and her daughter do not have a cause of action under the law in force at the time of Sallenger's death. ⁴

In 1972 the Idaho Legislature made significant changes in all three of the statutes relied on by the petitioners. Under present Idaho law, eighteen is the age of majority for both males and females. ⁵ The wrongful death statutes now in effect provide a cause of action to the surviving spouse and issue of a deceased married minor. ⁶ Therefore, it is clear that had either the revised minority statute or the revised wrongful death statutes been in effect at the time of Sallenger's death, the plaintiffs would unquestionably have been entitled to bring an action for Sallenger's death.

The plaintiffs, Sallenger's widow and minor daughter, base their opposition to the issuance of a permanent writ of prohibition on constitutional grounds. They contend that Idaho's former minority statute, supra note 1, which placed the age of majority for males at twenty-one and for females at eighteen, was repugnant to the fourteenth amendment of the United States Constitution in that it denied to males between the ages of eighteen and twenty-one equal protection of the laws. They argue that as the former version of I.C. § 32-101 accorded females the benefits of adult status at age eighteen, the fourteenth amendment required that males be treated equally, and also be considered adults at eighteen. Under this line of reasoning, Dean Sallenger was a person 'not being a minor' at the time of his death. Therefore, plaintiffs argue, under the wrongful death statutes in effect at the time of Sallenger's death, supra notes 2, 3, the proper parties to bring an action for his alleged wrongful death would be his heirs-his widow and minor daughter.

Before a litigant may challenge a statute's constitutionality,

'it must appear that the alleged unconstitutional provisions operate to the hurt of the (litigant) and adversely affect his rights or put him to a disadvantage. It is a fundamental principle of constitutional law that a person can be heard to question the constitutionality of a statute only when and insofar as it is being, or is about to be, applied to his disadvantage.' State v. Clark, 88 Idaho 365, 376-377, 399 P.2d 955, 962 (1965). See also Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 395-396, 342 P.2d 719 (1959).

Application of the former minority statute to the facts of this case, would effectively preclude the plaintiffs from asserting their claim for damages for the death of their husband and father, to their potential prejudice. Therefore, although Mrs. Sallenger and her daughter are not members of the class which was allegedly unfairly burdened by the statute (eighteen-, nineteen-, twenty-year-old males), they have sufficient personal interest in the matter to raise the constitutional question. Cf. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

We agree with the plaintiffs that the former Idaho minority statute, which provided different ages of majority for men and women, constituted a violation of the equal protection clause of the fourteenth amendment.

Federal and state legislation providing for differing treatment of persons solely on the basis of sex has come under increasing attack, and in many cases has been found unconstitutionally to deny due process (cases involving federal statutes) and/or equal protection of the laws These cases include Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, (1972); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Moritz v. C. I. R., 469 F.2d 466 (10th Cir. 1972); Commonwealth, Alcoholic Beverage Con. Bd. v. Burke, 481 S.W.2d 52 (Ct.App.Ky.1972). See also Bennett v. Dyer's Chop House, Inc., 350 F.Supp. 153 (N.D.Ohio 1972); Reed v. Nebraska School Activities Association, 341 F.Supp. 258 (D.Neb.1972); Owen v. Illinois Baking Corporation, 260 F.Supp. 820 (W.D.Mich.1966). Statutory discriminations against men, e. g., Stanley v. Illinois, supra; Moritz v. C. I. R., supra, as well as against women, have been disapproved. The conventional assumptions of popular wisdom regarding the necessity for such differing treatment have been challenged. ⁷

One of the areas which has been subjected to increasing legislative and judicial scrutiny has been that of age-sex discrimination. Statutes which treat persons of the same age differently, solely on the basis of sex, have been found to violate the equal protection clause of the Constitution. Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972); Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973); People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189 (1973); A. v. City of New York, 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432 (Ct.App.1972); In re B., 68 Misc.2d 95, 326 N.Y.S.2d 702 (Fam.Ct.1971). See also the discussion of this issue in Kanowitz, Constitutional Aspects of Sex-Based Discrimination in American Law, 48 Neb.L.Rev. 131, 157-60 (1968). As noted above, the Idaho legislature has now established eighteen as the age of majority for both men and women. I.C. § 32-101.

Many of the cases which have found sex-discriminatory legislation to constitute a denial of equal protection have employed 'traditional' equal protection analysis.

In the landmark case of Reed v. Reed, supra, the United States Supreme Court applied the 'traditional' standard. The Court there stated:

'The Equal Protection Clause * * * den(ies) 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 object 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." 404 U.S. at 75-76, 92 S.Ct. at 253-254, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).

In the Reed case, the Supreme Court held that a provision of the Idaho probate code, which gave preference to men over women when persons of the same entitlement class applied for the position of administrator of a decedent's estate, constituted a violation of the equal protection clause of the fourteenth amendment.

In the recent case of Frontiero v. Richardson, supra, a purality of the United States Supreme Court held that,

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