Roberson v. Roberson

• Decision Date: 22 February 1937
• Docket Number: 4-4530
• Citation: 101 S.W.2d 961,193 Ark. 669
• Parties: ROBERSON v. ROBERSON
• Court: Arkansas Supreme Court

101 S.W.2d 961

193 Ark. 669

ROBERSON v. ROBERSON

4-4530

Supreme Court of Arkansas

February 22, 1937

Appeal from Hempstead Circuit Court; Dexter Bush, Judge; reversed.

Judgment reversed and cause dismissed.

Terrell Marshall and Verne McMillen, for appellant.

W. S Atkins and Ned Stewart, for appellee.

SMITH J. MEHAFFY, J., dissents. BUTLER, J., concurs in the judgment.

OPINION

SMITH, J.

Appellee recovered judgment against appellant, who is her husband, for the sum of $ 5,000, to compensate a personal injury sustained by her while riding with him in his car, and this appeal is from that judgment.

As a cause of action, the complaint alleged "That defendant's negligence consisted in (a) a defective casing; (b) driving said automobile at a high, excessive and dangerous rate of speed." It is not questioned that the testimony sufficiently sustained these allegations. The injury occurred August 23, 1934, and the suit was filed August 13, 1935.

Between these two dates the General Assembly of 1935 passed two acts, one No. 61 and the other No. 179. Both acts were passed to regulate the liability of owners or operators of automotive vehicles to guests riding therein. Sections 1 and 2 of act 61 read as follows:

"Section 1. That no person transported as a guest in any automotive vehicle upon the public highways of this state shall have a cause of action against the owner or operator of such vehicle for damages on account of any injury, death or loss occasioned by the operation of such automotive vehicle unless such vehicle was wilfully and wantonly operated in disregard of the rights of the others.

"Section 2. The term guest as used in this act shall mean self-invited guest or guest at sufferance."

Act 179 substantially re-enacts act 61, with the added provision that "* * * in no event shall any person related by blood or marriage within the third degree of consanguinity or affinity to such owner or operator, or the husband, widow, legal representative, or heirs of such person, have a cause of action for personal injury, including death, resulting therefrom, against such owner or operator while in, entering, or leaving such motor vehicle, provided this act shall not apply to public carriers."

Under the first act the gratuitous guest is denied the right to recover unless the vehicle "was wilfully and wantonly operated in disregard of the rights of others." Under the later act the right of recovery is denied certain persons there named under any circumstances.

It will be observed that the complaint did not allege that "such vehicle was wilfully and wantonly operated in disregard of the rights of others," nor was that issue submitted to the jury.

That a wife riding in her husband's car at his invitation is a guest within the meaning of these statutes is not questioned. Nor is it open to question that before the passage of the acts above mentioned the driver of an automobile was bound to exercise ordinary care in the operation thereof for the safe transportation of occupants therein, whether such occupants were guests by sufferance, or were invited by the driver or by some one else, or were self-invited. It was so held in the case of Gurdin v. Fisher, 179 Ark. 742, 18 S.W.2d 345. This opinion was delivered June 10, 1929, which was, of course, prior to the passage of acts Nos. 61 and 179, supra. It was also held in the case of Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.2d 696, that a married woman may maintain an action against her husband for an injury as the result of his negligence in the operation of an automobile in which she was a guest. The effect of the opinions in the cases of Gurdin v. Fisher and Katzenberg v. Katzenberg, supra, was that a wife, although riding in her husband's car as his guest, might recover judgment against him to compensate an injury to her resulting from his negligent operation of the automobile.

We are asked to reconsider and overrule the Katzenberg case upon the ground that it is contrary to the great weight of authority upon the right of the wife to sue her husband for his negligent injury of her. Many cases are cited in support of this contention. If it be true, as appellant contends, that this case is contrary to the weight of authority, it may be said that in several, at least, of the states whose holdings on the subject are not in accord with our Katzenberg case, there is absent statutes emancipating married women from the disabilities incident to coverture as broad as those of this state on that subject. The Katzenberg case cites act 159 of the Acts of 1915 and act 66 of the Acts of 1919 of the General Assembly of this state, and that decision is based upon what was thought to be the proper interpretation and application of those acts. We think no error was made in this respect, and the suggestion that we overrule the Katzenberg case is, therefore, denied.

The decision of this case must, therefore, depend upon the validity and application of acts 61 and 179 of the Acts of 1935. Numerous cases in point exist, and their number is rapidly increasing, and this opinion would be almost interminable if we attempted to cite them and distinguish their somewhat conflicting holdings. A general statement of the law appears at § 2313, page 102, Volume 4, Blashfield's Cyclopedia of Automobile Law and Practice (Permanent Edition). It reads as follows: "While statutes of this character, which look primarily to abolition of a guest's remedy for injuries, have been held unconstitutional as violative of constitutional provisions that every man shall have a remedy by due course of law for injury done him in his person, property or reputation, where the legislation emphasizes the restriction on the operator's duties rather than on the guest's remedies, statutes in this form have in general been held good as against constitutional objections, and regarded as a proper exercise of the police power and not violative of the process clause; but statutes of more comprehensive nature which undertake to relieve an automobile operator from all liability for injuries suffered by a nonpaying passenger, whatever the degree of negligence, have been held unconstitutional."

The first case cited in the note to the text quoted holding such legislation unconstitutional, whatever the degree of negligence, is that of Coleman v. Rhodes, 5 Harr. 120, 159 A. 649. In that case the superior court of Delaware declared unconstitutional a statute of that state relieving the operator or owner of a motor vehicle from any liability whatsoever for injuries suffered or sustained by any person while riding with the owner or in the owner's car free of charge. But the same court, in the later case of Hazzard v. Alexander, 173 A. 517, held a later statute of that state constitutional which provided there should be no cause of action against an operator of an automobile for death of, or damage to, a gratuitous guest unless the accident was intentional or caused by willful or wanton disregard of the rights of others.

Under the reasoning of these and other cases cited in the note to the text quoted it might be that act 179 is unconstitutional, whereas act 61 is valid, the difference being that act 179 denies the right of recovery to certain persons under any circumstances, whereas act 61 denies the right of recovery to all persons riding as guests "unless such vehicle was wilfully and wantonly operated in disregard of the rights of others." But if act 61 is constitutional and is applicable to the facts of this case, it is unnecessary to consider act 179 or to pass upon its constitutionality, for the reason that act 61 defeats a recovery in this case, it not being alleged or shown that appellant had wilfully and wantonly operated his car in disregard of the rights of others.

Appellee insists that her cause of action is not defeated by this act 61 for two reasons. First, that the act is unconstitutional, and, second, if constitutional, it cannot be applied to this case for the reason that her injury occurred and her cause of action accrued prior to its passage and that the act cannot be given a retroactive effect, as that intention was not expressed or necessarily implied, as must be true to give the act that effect.

Similar legislation--and there has recently been much of it--is generally held constitutional where the right of recovery is not wholly denied, as in act 179 applied to certain persons. This is true in numerous states whose constitutions are similar to our own.

A case which discusses the evils to be remedied by such legislation and the theory upon which its constitutionality is sustained is that of Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A. L. R. 1189. Justice FEAD, speaking for the Supreme Court of Michigan, there said: "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. * * * Generally, gratuitous passengers are relatives or friends. * * * In many, probably most, of the cases * * * the real defendant is an insurance company," and that it is not difficult to prove ordinary negligence where guest and host cooperate to that end; that the results of such cases are mirrored in increased insurance rates, which affects the subject with a public interest. Other cases uphold the legislation as a valid exercise of the police power in the regulation and control of traffic upon public highways.

Act 61 does not deny the gratuitous passenger access to the courts, but does define the duty due him and prescribes the character of proof he must make to sustain his action for the injury done him.

The Supreme...