Henry v. Bauder

Decision Date26 January 1974
Docket NumberNo. 47101,47101
Citation518 P.2d 362,213 Kan. 751
PartiesTerry A. HENRY, by and through her father and next friend, Kennyth Henry, Appellant, v. Thomas W. BAUDER, by and through his father and next friend, Thomas M. Bauder, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Under federal and Kansas equal protection constitutional provisions, a state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation.

2. The constitutional principle of equal protection does not preclude the atate from drawing distinctions between different groups of individuals, but does require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.

3. The Kansas guest statute K.S.A. 8-122b is unconstitutional and void as a denial of equal protection of the law under the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights for the reason that the classifications provided in that statute are arbitrary and discriminatory and have no rational basis.

Michael G. Norris, Olathe, argued the cause, and was on the brief for the appellant.

Barton Brown, Overland Park, argued the cause, and Larry J. Austin, Overland Park, was with him on the brief for the appellee.

Patrick F. Kelly, Wichita, Kansas Trial Lawyers Association, was on the brief amicus curiae.

PRAGER, Justice.

This case involves the constitutionality of the Kansas guest statute, K.S.A. 8-122b. On October 16, 1971, the plaintiff-appellant, Terry A. Henry, a sixteen-year-old girl, was a guest passenger in an automobile operated by the defendant-appelle, Thomas W. Bauder. A collision occurred and plaintiff suffered severe personal injuries. The original action in district court involved an additional defendant who was the driver of the other vehicle. However, this appeal is only concerned with that portion of the petition which charged the defendant Bauder with ordinary negligence. The trial court dismissed that portion of the plaintiff's claim on the basis of the Kansas guest statute which reads as follows:

'8-122b. Right of guest to collect damages from owner or operator. That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.'

The practical effect of the statute is to deny to nonpaying guests any remedy at all where the driver has failed to use reasonable care in the operation of his automobile. The driver is legally liable only where he has been guilty of some act constituting recklessness or wilful or wanton misconduct.

The plaintiff assails the constitutionality of the Kansas guest statute on two theories. First, plaintiff contends that the guest act deprives her as a guest passenger of a 'remedy by due course of law' under Section 18 of the Bill of Rights of the Kansas Constitution. Second, she contends that the guest statute is violative of the 'equal protection' provision of the Fourteenth Amendment to the United States Constitution in that the statute discriminates between 'guests' and 'paying passengers' in a manner which bears no rational relationship to the purposes of the legislation. The plaintiff's first theory of unconstitutionality has been raised in several previous Kansas cases and rejected by this court. (Bailey v. Resner, 168 Kan. 439, 214 P.2d 323; Wright v. Pizel, 168 Kan. 493, 214 P.2d 328, and Westover v. Schaffer, 205 Kan. 62. 468 P.2d 251.) Westover was decided by this court in 1970 and we will not consider the rationale of those decisions insofar as it relates to Section 18 of the Bill of Rights of the Kansas Constitution.

The plaintiff's second contention that the guest statute denies to her equal protection of the law has not previously been raised in this state. We will consider that question as a matter of first impression and determine the issue on its merits. The equal protection clause of the Fourteenth Amendment to the United States Constitution finds its counterpart in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution which declares in substance that 'all men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness,' and that 'all free governments . . . are instituted for the equal protection and benefit (of the people).' While these two provisions of our Bill or Rights declare a political truth, they are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law. (Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877.) In Tri-State Hotel Co., Mr. Justice Fatzer set forth clearly and concisely the rules to govern the courts of this state in determining issues pertaining to the constitutionality of legislative enactments. There he stated:

'This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution, and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters. . . . While the legislature is vested with a wide discretion to determine for itself what is inimical to the public welfare which is fairly designed to protect the public against the evils which might otherwise occur, it cannot, under the guise of the police power, enact unequal, unreasonable or oppressive legislation or that which violates the Constitution. If the classification provided is arbitrary, . . . and has no reasonable relation to objects sought to be attained, the legislature transcended the limits of its power in interfering with the rights of persons affected by the Act. . . .' (p. 760, 408 P.2d p. 887.)

In Pinkerton v. Schwiethale, 208 Kan. 596, 493 P.2d 200, we stated that reasonable classifications of persons are permissible, for it is only invidious discrimination which offends. A classification employed in the exercise of police power cannot be made arbitrarily. Any distinctions inherent in a particular classification must furnish a proper and reasonable basis for such a classification. The concept of equality of all citizens under the law is, of course, basic to our free society. We have stated that classifications may not be created arbitrarily, discriminatorily or unreasonably, or the principle of equality would be violated. There must be some difference in character, condition, or situation, to justify distinction, and this difference must bear a just and proper relation to the proposed classification and regulation; otherwise, the classification is forced and unreal, and greater burdens are, in fact, imposed on some than on others of the same desert. (The State v. Heitman, 105 Kan. 139, 181 P. 630.)

The United States Supreme Court in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, declared that the equal protection clause of the Fourteenth Amendment to the United States Constitution, does not deny to the states the power to create distinct classifications of persons in different ways. The equal protection clause of that amendment does, however, deny to a state 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.'

The problem presented in this case is essentially to determine the reasonableness of the classifications provided under the Kansas guest statute. In short, is the statutory classification between 'nonpaying guest' and 'paying passenger' reasonable or is it arbitrary and unreasonable? In February of 1973 the Supreme Court of California in Brown v. Merlo, 8 Cal.3d 855, 106 Cal. Rptr. 388, 506 P.2d 212, considered the California guest statute and held it unconstitutional as a denial of equal protection of the law as embodied in the California Constitution and the Fourteenth Amendment to the United States Constitution. In Brown the court considered and applied the basic principles governing equal protection of the law which are set forth above. The California Supreme Court held the guest statute of that state unconstitutional for the reason that statute withdrew from automobile 'guests' i.e., passengers who give no compensation for their ride, the protection against negligently inflicted injury which California law generally affords to all others. We are impressed with the sound rationale of the opinion in Brown. The result reached by the Supreme Court of California in Brown in our judgment is reasonable and in accordance with our concept of equal justice under the law.

We hold that the Kansas guest statute, K.S.A. 8-122b, is unconstitutional and void as a denial of equal protection of the law under the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights. In reaching this conclusion we do not do so on the basis of the wisdom of the statute but solely on the basis that the classifications provided in the statute as interpreted by our judicial decisions are arbitrary and...

To continue reading

Request your trial
113 cases
  • American Bank & Trust Co. v. Community Hospital
    • United States
    • United States State Supreme Court (California)
    • 9 Julio 1984
    ...in other states on this basis. (See, e.g., Thompson v. Hagan (1974) 96 Idaho 19, 523 P.2d 1365, 1368-1369; Henry v. Bauder (1974) 213 Kan. 751, 518 P.2d 362, 369-371; McGeehan v. Bunch (1975) 88 N.M. 308, 540 P.2d 238, 242-244; see also Johnson v. Hassett (N.D.1974) 217 N.W.2d 771, The appl......
  • Malan v. Lewis, 17606
    • United States
    • Supreme Court of Utah
    • 1 Mayo 1984
    ...Supreme Court sustained the constitutionality of its guest statute three times before holding it unconstitutional in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974). Other courts have applied the same principles. Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973); Bierk......
  • State v. Genson
    • United States
    • United States State Supreme Court of Kansas
    • 29 Julio 2022
    ...legislature transcended the limits of its power in interfering with the rights of persons affected by the Act.’ " Henry v. Bauder , 213 Kan. 751, 753, 518 P.2d 362 (1974) (quoting Tri-State Hotel Co. v. Londerholm , 195 Kan. 748, 760, 408 P.2d 877 [1965] ). Indeed, when a statute deprives a......
  • Brewer v. Copeland, 43472
    • United States
    • United States State Supreme Court of Washington
    • 13 Noviembre 1975
    ...8 Cal.3d at 868, 106 Cal.Rptr. at 397, 506 P.2d at 221. See also Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974); McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis.2d 394, 113 N.W.2d 1......
  • Request a trial to view additional results
1 books & journal articles
  • Roberts v. Johnson-a Welcome Change Tainted
    • United States
    • Seattle University School of Law Seattle University Law Review No. 2-03, March 1979
    • Invalid date
    ...v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973); Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Prosser, supra note 17, at 186-87; Allen, Why Do Courts Coddle Auto Indemnity Companies?, 61 Am. L. Rev. 77 (1927); Las......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT