McGeehan v. Bunch

• Decision Date: 23 September 1975
• Docket Number: No. 10223,10223
• Citation: 88 N.M. 308,540 P.2d 238,1975 NMSC 55
• Parties: Elizabeth McGEEHAN, Petitioner, v. Thomas B. BUNCH, Respondent.
• Court: New Mexico Supreme Court

Page 238

540 P.2d 238

88 N.M. 308

Elizabeth McGEEHAN, Petitioner, v. Thomas B. BUNCH, Respondent.

No. 10223.

Supreme Court of New Mexico.

Sept. 23, 1975.

[88 NM 309] Horn, Schowers & Ginsburg, Albuquerque, for petitioner.

Keleher & McLeod, William K. Stratvert, Albuquerque, for respondent.

OPINION

MONTOYA, Justice.

On August 1, 1973, petitioner Elizabeth McGeehan (plaintiff) filed suit in the District Court of Bernalillo County alleging that she was injured on March 3, 1972, while a guest in the car of respondent Thomas B. Bunch (defendant). The complaint alleged that defendant failed to use due and ordinary care while operating his vehicle on State Road 90 in Grant County, New Mexico. Defendant moved to dismiss on the ground that the facts as stated in the complaint fell within the terms of New Mexico's 'guest statute,' § 64--24--1, N.M.S.A., 1953 (Repl.Vol. 9, Pt. 2, 1972). In a memorandum of law submitted in opposition to defendant's motion to dismiss, plaintiff attacked the constitutionality of the guest statute as violative of N.M.Const. art. II, § 18, and U.S.Const. amend. XIV, in that it arbitrarily and unreasonably discriminates between paying and nonpaying guests. The motion to dismiss was heard and granted by the district court on November 27, 1973.

On December 19, 1973, plaintiff filed a notice of appeal, and on October 23, 1974, the Court of Appeals issued its order affirming the trial court. Plaintiff then filed for a writ of certiorari. The writ was subsequently granted by this court on December 5, 1974.

This appeal is limited to the determination of one narrow issue, whether or not our guest statute by creating a distinction between paying and nonpaying automobile guests violates the equal protection clause of the federal and state constitutions.

Section 64--24--1, supra, as presently in force, reads as follows:

'No person transported by the owner * * * of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner * * * for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner * * * or caused by his heedlessness or his reckless disregard of the rights of others.'

This statute, although modified by case law, was enacted in 1935.

The United States Supreme Court considered the constitutionality of the Connecticut guest statute, after which the New Mexico statute was copied verbatim, in Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Although the equal protection clause was involved, the matter then under consideration was different from what we are faced with here. The Court held the statute to be constitutional and stated (280 U.S. at 123, 50 S.Ct. at 59, 74 L.Ed. at 225):

'It is said that the vice in the statute is not that it distinguishes between passengers who pay and those who do not, but between gratuitous passengers in automobiles and those in other classes of vehicles. But it is not so evident that no grounds exist for the distinction that we can say a priori that the classification is one forbidden as without basis, and arbitrary. See State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 397, 47 S.Ct. 630, 71 L.Ed. 1115.'

The constitutionality of our guest statute has been considered four previous times. Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968); Gallegos v. Wallace, 74 N.M. 760, 398 P.2d 982 (1964); Mwijage v. Kipkemei, 85 N.M. 360, 512 P.2d 688 (Ct.App.1973); Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (Ct.App.1967).

In deciding the constitutionality of a statute in general, it must be recognized initially that:

'We have repeatedly held that every presumption is to be indulged in favor of the validity and regularity of legislative enactments. (Citations omitted.) A statute will not be declared unconstitutional unless the court is satisfied beyond all reasonable doubt that the legislature went outside the constitution in enacting the challenged legislation. (Citations omitted.)'

City of Raton v. Sproule, 78 N.M. 138, 142, 429 P.2d 336, 340 (1967). In keeping with the traditional self-restraint of this court regarding constitutional challenges, we refuse to inquire into 'the wisdom, the policy or the justness of an act of the legislature * * *.' Gruschus v. Bureau of Revenue, 74 N.M. 775, 777, 399 P.2d 105, 106 (1965). It is not within the realm of this court to question the social or economic policies underlying legislative acts. Only when this court is satisfied that the legislature has wandered outside the confines of the constitution by enacting unequal, oppressive and arbitrary legislation will such legislation be struck down.

In particular, when a statute is challenged on the basis of the equal protection clause, specific tests are applicable. Where legislation involves 'suspect classifications' (race, etc.) or touches 'fundamental interests' (right to vote), it is subject to strict scrutiny. See Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971). But where, as here, no such concerns are present, legislation is subject to a more liberal critique. As stated by this court in Gruschus v. Bureau of Revenue, supra (74 N.M. at 778, 399 P.2d at 107):

'* * *. Equal protection does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and those to whom it does not apply, and that it is so framed as to embrace equally all who may be in like circumstances and situations. (Citations omitted.)'

The current federal constitutional standard was enunciated by the United States Supreme Court in Reed v. Reed, 404 U.S. 71, 75--76, 92 S.Ct. 251, 253--54, 30 L.Ed.2d 225, 299 (1971):

'* * * (T)he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. (Citations omitted.) The Equal Protection Clause of that amendment does, however, deny 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 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.' (Citations omitted.)'

See also James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

It seems that from the above cases the Supreme Court of the United States is prepared to acknowledge the existence of substantial claims under the equal protection clause on minimum rationality grounds and has, to some extent, blurred the distinction between strict and minimal scrutiny that characterized the old equal protection formulation by the courts. See generally Gunther, The Supreme Court, 1971 Term: Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972--73).

In McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, 228 (1964), the Court stated:

'Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose--* * *.'

In applying this test to our guest statute, it is first necessary to determine the statute's objective. The traditional justifications for the passage of such statutes found in court decisions and academic commentaries are that they (1) promote hospitality, by excluding one who gratuitously provides a ride from suit based on ordinary negligence, and (2) prevent collusion which could result from an admission of liability by an insured driver in order to allow recovery by a family member or friend. Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973); Thompson v. Hagan, 93 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); 2 Harper & James, Law of Torts § 16.15 at 961 (1956).

The same objects and purposes of the guest statute were discussed and recognized in the reasoning by our Court of Appeals, which led to the decision holding it constitutional under the equal protection and due process clauses of the U.S. and N.M.Const., Romero v. Tilton, supra. There the issue of constitutionality was raised as to the distinction made in the statute providing (78 N.M. at 699, 437 P.2d at 160):

'* * * protection from liability accorded by our guest statute to the 'owner' of the motor vehicle, while denying the same protection to a non-owner operator, or other non-owners responsible for the operation of the vehicle, * * *.'

We do not believe that the protection of hospitality justifies the statute's classification. This 'hospitality' rationale asserts that the classification scheme merely provides a higher standard of care for those who pay than for those who do not. This principle has been recognized by the courts in the case of common carriers. But this same reasoning cannot reasonably be applied to guests in passenger cars. There is no principle in our general legal scheme which dictates that one must pay for the right of protection from negligently inflicted injury. See Brown v. Merlo, supra; Henry v. Bauder, supra. The classification fails not because it draws some distinction between paying and nonpaying guests, but because it penalizes nonpaying guests by depriving them completely of protection from ordinary negligence. The loss of life or limb of a guest should not become less worthy of compensation merely because he has not paid for his ride. No matter how laudable the State's...