Johnson v. Hassett

Citation217 N.W.2d 771
Decision Date29 March 1974
Docket NumberNo. 8968,8968
PartiesRonald W. JOHNSON and Lee Hassett, Plaintiffs and Appellees, v. Byron HASSETT, Defendant and Appellant. Civ.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court

1. In passing on constitutionality, standards may differ as to constitutionality under the Federal and State Constitutions.

2. The North Dakota Constitution forbids the granting of special privileges and immunities to any class of citizens and requires that laws have uniform operation and do not deny due process of law.

3. The arbitrary distinction between paying and nonpaying guests contained in the Guest Law, Chapter 39--15, N.D.C.C., cannot be justified by fear of collusion or perjury. The statute unreasonably disqualifies all persons within a class merely because a few may engage in collusive suits.

4. The arbitrary distinction between paying and nonpaying guests contained in the Guest Law, Chapter 39--15, N.D.C.C., is not justified by considerations of hospitality, since similar hospitality considerations in other fact situations are not so treated and hosts are otherwise liable under general rules of liability for negligence. The discriminatory favorable treatment of automobile hosts is not supported by a valid public purpose.

5. Changes in circumstances may make irrational a classification which was formerly a rational State purpose.

6. The prevalence of automobile insurance, the adoption of a comparative-negligence statute, the trend away from immunity from suit, the lessened likelihood and lessened fear of collusion, and the experience of 43 years of litigation under the guest law are all factors to be considered in deciding the present-day constitutionality of the law.

7. The North Dakota Guest Law, Chapter 39--15, N.D.C.C., is unconstitutional under the North Dakota Constitution, Sections 11, 13, and 20.

Lewis C. Jorgenson, Devils Lake, for plaintiffs and appellees.

John M. Olson, Sp. Asst. Atty. Gen., Bismarck, for defendant and appellant.

VOGEL, Judge.

The North Dakota Guest Law, Chapter 39--15, North Dakota Century Code, provides that a 'guest,' defined as a person who accepts a ride in any vehicle without giving compensation therefor, cannot recover for damages caused by the ordinary negligence of his host. He can recover only if he can prove that his injuries and damages were caused by 'the intoxication, willful misconduct, or gross negligence' of the owner, driver, or other person responsible for the operation of the vehicle. The statute applies only to injuries occurring upon the public highways.

The plaintiffs here, severely injured in a one-car accident which they admit was caused by only the ordinary negligence of the driver of the car, the defendant, challenged the constitutionality of the guest law in the trial court. The court nevertheless instructed the jury on the guest law, and submitted to the jury the question of whether the plaintiffs were guests (since there was testimony that they had paid for some gas, to the extent of about five dollars for the 300-mile trip). The court accepted the verdict by the jury in favor of the plaintiffs. Upon consideration of a motion for judgment notwithstanding the verdict, the trial court ruled, first, that payment for the gas on a social trip did not take the plaintiffs out of the guest statute (citing dictum in Ledford v. Klein, 87 N.W.2d 345 (N.D.1958), and the opinion in Haug v. Grimm, 251 F.2d 523 (CA8 1958), construing North Dakota law) and, second, that the plaintiffs nevertheless were entitled to recover for ordinary negligence, since the guest statute is unconstitutional. We reach only the second point, constitutionality of the guest law, which is decisive of the appeal.


North Dakota's guest law was adopted in 1931. About half the States have such The constitutionality of such statutes has been before the courts a number of times. The first guest law, passed in Connecticut, was held constitutional by the State court in Silver v. Silver, 108 Conn. 371, 143 A. 240 (1928), and by the United States Supreme Court in Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929).

laws, which differ in language and interpretation to the extent that one authority states flatly that 'there are as many different guest laws as there are acts.' Prosser, Torts, 4th Ed., p. 187. The statutes were passed in the 1920s and 1930s (Harper & James, The Law of Torts, Sec. 16.15), and are 'the result of persistent and effective lobbying on the part of liability insurance companies (Prosser, op. cit., p. 187).' No State has adopted a guest law since 1939 (Harper & James, op. cit., n. 4; Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973)). A few States--including Connecticut, which passed the first such statute--have repealed their guest laws. Recently, California declared its guest law unconstitutional, in Brown v. Merlo, Supra. Wisconsin, which had a similar rule by judicial interpretation, abolished it the same way (McConville v. State Farm Automobile Insurance Co., 15 Wis.2d 374, 113 N.W.2d 14 (1962); and see Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962)), while Massachusetts repealed its court-made rule by legislation (Mass.Gen.Laws Ann., chap. 231, Sec. 85L (Supp.1973)).

Subsequently, the constitutionality of various State guest laws was upheld in about a dozen States. Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189 (1931); Perozzi v. Ganiere, 149 Or. 330, 40 P.2d 1009 (1935); Smith v. Williams, 51 Ohio App. 464, 1 N.E.2d 643 (1935); Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30 (1935); Shea v. Olson, 185 Wash. 143, 53 P.2d 615 (1936); Gallegher v. Davis, 37 Del. 380, 183 A. 620 (1936); Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937); Campbell v. Paschall, 132 Tex.Civ.App. 226, 121 S.W.2d 593 (1938); Wright's Estate v. Pizel, 168 Kan. 493, 214 P.2d 328 (1950)*; Vogts v. Guerrette, 142 Colo. 527, 351 P.2d 851 (1960); Delany v. Badame, 49 Ill.2d 168, 274 N.E.2d 353 (1971); Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (1967), cert. denied 78 N.M. 704, 437 P.2d 165.

In addition, intermediate appellate courts in California indicated its law was constitutional (e.g., Ferreira v. Barham, 230 Cal.App.2d 128, 40 Cal.Rptr. 739 (1964)), but the Supreme Court of California held the guest law unconstitutional in Brown v. Merlo, Supra.

The earliest case, the Connecticut case of Silver v. Silver, Supra, was a decision of a divided court, the majority of three judges holding the statute constitutional and the minority of two judges vigorously dissenting. The majority held that the statute was a matter of legislative discretion, and the minority argued that the classification specified in the statute was unreasonable and unconstitutional, since it separated gratuitous guests in automobiles from other gratuitous guests in every other type of vehicle. It asserted that no public purpose was served by this classification. The attack on constitutionality in Silver in the State court was based principally on the difference in treatment between automobile guests and guests in other conveyances, a much narrower challenge than we have here.

The decision of the United States Supreme Court was based entirely upon the Fourteenth Amendment of the United States Constitution.

The opposing arguments in Silver appear occasionally in the subsequent cases cited above, but most of the cases simply cite Silver v. Silver as having settled the question or hold the statute in question constitutional 'All laws of a general nature shall have a uniform operation.' Sec. 11, N.D. Constitution.

under a State constitutional provision somewhat similar to Section 22 of the North Dakota Constitution. Typical of such provisions is that of the Oregon Constitution, cited in Perozzi v. Ganiere, Supra, that guarantees a 'remedy by due course of law for injury done (one) in his person, property, or reputation.' Few of them discuss the 'privileges and immunities' constitutional provision such as is contained in Section 20, or the requirement that laws of a general nature have uniform operation, as in Section 11, or even the Due Process Clause contained in Section 13 of the North Dakota Constitution. The text of these constitutional provisions is quoted in full below.

'In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, Nor be deprived of life, liberty or Property without due process of law.' Sec. 13, N.D. Constitution. (Emphasis added.)

'No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.' Sec. 20, N.D. Constitution.

We note that the provisions of the California Constitution construed in Brown v. Merlo, Supra, Sections 11 and 21, are practically identical with Sections 11 and 20 of the North Dakota Constitution quoted above.

Equally interesting is the fact that few of the decisions upholding constitutionality of guest laws discuss the justifications advanced by proponents of such laws. These justifications are: (1) that they are intended to prevent collusion between hosts and guests, and (2) that they are designed to protect hosts against ungrateful guests who will reward hospitality by litigation. These purported justifications are fully analyzed, however, in Brown v. Merlo, Supra.

Some of the cases holding guest statutes constitutional even refuse, in express...

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