Noakes v. Gaiser, 18019

• Decision Date: 19 August 1957
• Docket Number: No. 18019,18019
• Citation: 315 P.2d 183,136 Colo. 73
• Parties: Mabel E. NOAKES, Plaintiff in Error, v. Ethel M. GAISER and Palmer Lee Gaiser, Defendants in Error.
• Court: Colorado Supreme Court

Page 183

315 P.2d 183

136 Colo. 73

Mabel E. NOAKES, Plaintiff in Error, v. Ethel M. GAISER and Palmer Lee Gaiser, Defendants in Error.

No. 18019.

Supreme Court of Colorado, En Banc.

Aug. 19, 1957.

Thomas K. Hudson, Denver, for plaintiff in error.

H. Berman, Nathan H. Creamer, Denver, for defendants in error.

The court being equally divided, the judgment of the trial court is affirmed by operation of law.

DAY, J., does not participate.

MOORE, C. J., and HOLLAND and FRANTZ, JJ., are of the opinion that the judgment should be reversed.

KNAUSS, SUTTON and HALL, JJ., are of the opinion that the judgment should be affirmed.

HOLLAND, Justice (dissenting).

I dissent from affirmance of the judgment by operation of law by divided court and in my opinion, the following should be the opinion of the court.

Plaintiff in error, on April 19, 1956, filed a complaint in damages under the guest statute, being C.R.S. '53, 13-9-1, against defendants in error as operator and owner of an automobile in which plaintiff was riding as a guest. Plaintiff sustained severe injuries, details of which are not necessary to here relate, and alleged that the injuries were caused by a collision with another automobile, which collision was the result of defendants' negligence, consisting of willful and wanton disregard of the rights of others.

Defendants, by their answer, allege that the complaint failed to state a claim upon which relief could be granted; that the accident was caused by the negligence of plaintiff, and was contributed to by plaintiff's negligence; and further, that plaintiff assumed the risk of the events that transpired.

Trial was commenced on March 27, 1956, before a jury and at the close of plaintiff's case, defendants moved for dismissal of the complaint and the court sustained this motion and dismissed the complaint. The regular procedure was followed or was dispensed with by order of court and we are asked to reverse this judgment of dismissal on the ground that the court erroneously took the case from the jury and held that as a matter of law, defendants' conduct did not constitute negligence consisting of willful and wanton disregard of plaintiff's rights, since it was for the jury to determine whether defendant driver exceeded the speed limit; failed to stop for an automatic traffic signal; whether or not she had her car under control; whether plaintiff had warned her as to the manner in which she was driving; and finally, whether plaintiff had protested against the manner in which she was operating the car.

On August 1, 1953, plaintiff was a passenger in an automobile being driven by defendant Ethel M. Gaiser; that plaintiff was in the front seat of the automobile on the right hand side and another passenger was riding in the middle between plaintiff and the driver. The three had been friends for a number of years and had attended a wedding in the morning, and after driving by plaintiff's home and stopping for a few moments, decided to go on someplace for lunch. From plaintiff's home they traversed several streets, finally reaching East Colfax avenue and there turned east, and at an intersection stoplight, their automobile crashed into the rear of another car which they had been following for some distance. This vehicle, as shown by the evidence, apparently stopped rather abruptly at the change in the traffic light.

Plaintiff claims that defendant driver was looking to the side of the street for a certain restaurant as they drove along, and that plaintiff cautioned defendant driver a time or two about driving too fast, careless driving and on driving the car and not looking in the direction in which they were traveling, and plaintiff, realizing that the collision was about to occur, told defendant driver to 'Watch it,' but it was too late. Because this testimony of plaintiff is denied by defendant driver, it raises a jury question and was sufficient to raise the question of defendant driver's willful and wanton disregard of the rights of plaintiff. Our guest statute, C.R.S. '53, 13-9-1, is as follows:

'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 intentional on the part of such owner or operator or caused by his intoxication, or by negligence consisting of a willful and wanton disregard of the rights of others. The provisions of this section shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier or by such owner or operator.'

The inconceivable terms found in the above statute makes our statute different in some respects to the so-called guest statutes of other states. Witness: '* * * unless such accident shall have been intentional on the part of such owner or operator * * *.' If what happened here or in other similar cases was 'intentional,' then it was not accidental; also, if defendant driver was willfully and wantonly disregarding the rights of plaintiff, then it was not negligence. The use of the word 'negligence' in the statute is a meaningless expression that should not pollute the intended sense of the statute.

Defendants' plea or contention that plaintiff was guilty of contributory negligence is without merit. If the contention is made upon the base that plaintiff failed to do the things for her protection, the evidence does not support that contention. Fragments of plaintiff's testimony disclose that she, in different ways, warned defendant driver about not being careful and about not looking where she was going, and it cannot successfully be urged that under the conditions here presented, plaintiff was bound to insist upon alighting from the automobile, because that is extending the requirements too far, besides, plaintiff did not know that there would be an accident. It is pertinent to make the further observation that if, as we have said hereinbefore, there is no negligence if the accident or the operation causing the accident was intentional, then it removes the field of negligence, plaintiff could not contribute to something that did not exist.

There was a conflict in the evidence as to whether the acts of defendant driver were willful and wanton, that being so, it was beyond the province of the trial court to determine the question, and it was clearly an issue to be submitted to the jury under definite instructions as to what constitutes willful and wanton disregard of plaintiff's rights. We reiterate that if the acts were negligent, they were not willful and wanton, but if willful and wanton, they were not negligent.

We fail to understand the allegations of defendants' answer: 'Defendants allege that the accident was caused by the negligence of plaintiff.' Plaintiff was not in charge of the operation of the automobile and did nothing that interfered with its operation, but for her own protection as a guest, she made sufficient complaint to defendant driver about the careless operation of the vehicle prior to the accident.

In accordance with the views herein expressed, it is my opinion that it was error for the court to dismiss plaintiff's complaint; that the judgment should be reversed and the cause remanded with directions to reinstate the complaint and proceed with the defense if any is to be presented.

FRANTZ, Justice (dissenting).

I would dissent from an affirmance by operation of law and would reverse the case. Article II, Sec. 6 of the Constitution of the State of Colorado provides: 'That courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.' (Emphasis supplied.) This is a constitutional mandate to the court. Even where a constitutional question is not raised by litigants the court has the duty, where a statutory provision affects the jurisdiction and responsibility of the court, to raise the question and dispose of it. The court may not avoid its responsibility by closing its eyes to a patent legislative effort to whittle away what is plainly required of it by the Constitution. Such divestiture of constitutional authority should be scuttled by the court without delay; it should maintain the pristine integrity and vitality of the judicial branch of government as contemplated and fixed by the founding fathers.

The quoted section of the Constitution embraces the principle of natural justice: that in a Republican form of government every man should have an adequate legal remedy for an injurious wrong done to him by another. This constitutional provision is a command to the courts to be open to every person and to afford such person a remedy for injury to him by another, and that such right shall not be denied. A statute contravenes this constitutional provision which would render the court impotent to act where the injunction of the constitutional provision requires that it do act. Where such is manifest, the court ought to declare the invalidity of the law without hesitation, upon its own motion.

One of the most highly regarded rights conferred upon the individual by Magna Charta is the provision that 'we will sell to no man, we will not deny to any man, either justice or right.' This provision of Magna Charta finds its counterpart in Article II, Sec. 6 of the Constitution of this state and in similar constitutional provisions in a number of other states. The courts of the several states having like provisions have held that its intent and purpose is 'to preserve the common-law right of action for injury to person or property, and while the legislature may change the remedy or form of procedure,...