Naudzius v. Lahr

• Decision Date: 23 January 1931
• Docket Number: No. 129.,129.
• Citation: 253 Mich. 216,234 N.W. 581
• Parties: NAUDZIUS v. LAHR.
• Court: Michigan Supreme Court

253 Mich. 216

234 N.W. 581

NAUDZIUS

v.LAHR.

No. 129.

Supreme Court of Michigan.

Jan. 23, 1931.

Certiorari to Circuit Court, Kent County; William B. Brown, Judge.

Action by Albina Naudzius, etc., against Allen Lahr. Motion to dismiss the declaration was overruled, and defendant brings certiorari.

Reversed, and order entered dismissing declaration.

Argued before the Entire Bench.

McDONALD, J., dissenting in part.Dilley & Dilley, of Grand Rapids (Brown, Kelley & Warner, of Lansing, of counsel), for applicant.

John J. Smolenski, of Grand Rapids (William K. Clute, of Grand Rapids, of counsel), for appellees.

Rodgers & Dunn and Dunham, Cholette & Allaben, all of Grand Rapids, amicus curiae.

FEAD, J.

Plaintiff is 16 years old. Her declaration charges that on August 18, 1929, while she was riding as a gratuitous passenger in defendant's automobile on the highway, she was injured as a consequence of defendant's negligence, both ordinary and gross. Defendant moved to dismiss the declaration on the ground that it did not charge actionable gross negligence, and that defendant was not liable for ordinary negligence because of Act No. 19, P. A. 1929, amending Act No. 302, P. A. 1915, for the regulation of motor vehicles and their operators upon the highways, by adding to the section declaring the civil remedies for injury the proviso:

‘Provided, however, That no person, 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 loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’

The act was given immediate effect; otherwise its effective date would have been August 28, 1929. Plaintiff contends both that the act is unconstitutional and it could not constitutionally be given immediate effect. The circuit court held with plaintiff on both contentions and denied defendant's motion.

Plaintiff claims the act violates the following constitutional provisions:

‘All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.’ Section 1, art. 2, Michigan.

‘No person shall be * * * deprived of life, liberty, or property, without due process of law.’ Section 16, art. 12, Michigan; Fourteenth Amendment, United States.

‘Nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.’ Fourteenth Amendment, United States.

In view of the argument, we again call attention to the rule that a statute cannot be declared unconstitutional merely because the court may deem it unjust or unwise nor unless it is in violation of applicable constitutional restrictions. Burrows v. Delta Transportation Co., 106 Mich. 582, 64 N. W. 501,29 L. R. A. 468;Daugherty v. Thomas, 174 Mich. 371, 140 N. W. 615,45 L. R. A. (N. S.) 699, Ann. Cas. 1915A, 1163;Bowerman v. Sheehan, 242 Mich. 95, 219 N. W. 69, 61 A. L. R. 859.

Plaintiff contends:

(1) The abolition of the right of action for ordinary negligence deprives plaintiff of a right of property without due process of law.

A right of action for a tort to happen in the future is not property, and may be abrogated by the Legislature. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49;Wall v. Studebaker Corporation, 219 Mich. 434, 189 N. W. 58; 12 C. J. 972; Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 74 L. Ed. 221.

(2) Plaintiff's remedy for tort cannot be abolished because, being a minor, she could not relieve defendant from liability on the ground of contract or agency.

The Legislature may remove the disability of a minor to contract. Wall v. Studebaker Corporation, supra; but the instant act is not based on any theory of contract, agency, or waiver. It operates of its own force as an exercise of legislative power. While the infant is something of a ward of the state, it is by a trust voluntarily assumed and declared by the state, and counsel have cited or stated no authority or principle which, under our Constitution, indicates that the Legislature is restricted in making such laws applicable to minors as well as adults.

(3) The act establishes unreasonable, arbitrary, and unlawful classes of persons having immunity under the statute and of persons deprived of remedy, in distinguishing (a) between motorcars and vehicles propelled by humans or animals; (b) between gratuitous and paying passengers in the same situation.

The equality of rights protected by our Constitution is the same as that preserved by the Fourteenth Amendment to the Federal Constitution. In re Fox's Estate, 154 Mich. 5, 117 N. W. 558. The standards of classification are:

‘1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 7831 S. Ct. 337, 340, 55 L. Ed. 369, Ann. Cas. 1912C, 160.

It would be threshing old straw to discuss the accepted fact that the motorcar has presented social, financial, and governmental problems which justify the Legislature in reasonably classifying it apart from other vehicles in the enactment of laws. L. R. A. 1918D, 134, note.

A few courts have held that, where no statute permits it, a gratuitous passenger may not recover against his host except for gross negligence or willful misconduct. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;Epps v. Parrish, 26 Ga. App. 399, 106 S. E. 297;Saxe v. Terry, 140 Wash. 503, 250 P. 27; 20 A. L. R. 1018, note; 61 A. L. R. 1254, note.

Can a state of facts be conceived which would form a reasonable basis for the classification at bar?

Generally, gratuitous passengers are relatives or friends. Exceptionally, they are mere acquaintances, invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N. W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its way to this court. Harvey v. Harvey, 239 Mich. 142, 214 N. W. 305; Riser v. Riser, 240 Mich. 402, 215 N. W. 290;Farthing v. Hepinstall, 243 Mich. 380, 220 N. W. 708. In many, probably most, of the cases between relatives or friends the real defendant is an insurance company. Ordinary negligence is not hard to prove if guest and host co-operate to that end. It is conceivable that such actions are not always unattended by collusion, perjury, and consequent fraud upon the court. While we may accept the contention that paid insurers are not objects of special consideration by the Legislature, it is inadmissible for the court to consider a law from the viewpoint that they are not entitled to a proper trial and honest determination of liability in a lawsuit. Nor are insurance companies alone interested in the question. The results of verdicts are mirrored in insurance rates, and the law provides a possible reason in the purse of the motor owning public, most of whom carry liability insurance. It is not inconceivable that some passengers who solicit rides may manufacture claims for liability. Groups of young folks, engaged upon a joint enterprise of social enjoyment in a borrowed car, have been known to combine to charge the owner for an accident. The law also has social features. It is well known that drivers hesitate to take neighbors for a ride or to assist on his way a weary traveler because of potential liability for injuries. Few, if indeed any, of these features seem to have manifested themselves in the use of other vehicles than motorcars. Perhaps the Legislature also had other reasons for the law. In view of the abundance of personal injury litigation from the operation of motorcars and the conditions readily conceivable as pertinent to the relation of guest passenger in them, which litigation and conditions seem to be substantially absent from the use of other vehicles, it cannot be said that the classification at bar was arbitrary and without reasonable basis.

Whether the feared evils of the act will produce carelessness in driving and overshadow the evils sought to be remedied by it goes to the wisdom, not the validity, of the law, and is for the Legislature, not this court, to consider. The Legislature has the right to experiment to attain a desired result.

In Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 58, 74 L. Ed. 221, in sustaining a similar statute as not in violation of the Fourteenth Amendment, the court said:

‘As the record does not disclose the constitutional grounds on which the appellant challenged the validity of the statute, our review will be limited to the single question arising under the Federal Constitution which was considered in the opinion of the court below. * * * We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of...