Tisko v. Harrison

• Decision Date: 27 September 1973
• Docket Number: No. 18137,18137
• Citation: 500 S.W.2d 565
• Parties: Anthony J. TISKO, Appellant, v. Kervin HARRISON, a minor, Appellee.
• Court: Texas Court of Appeals

Page 565

500 S.W.2d 565

Anthony J. TISKO, Appellant, v. Kervin HARRISON, a minor, Appellee.

No. 18137.

Court of Civil Appeals of Texas,

Dallas.

Sept. 27, 1973.

Rehearing Denied Oct. 18, 1973.

Windle Turley, Dallas, for appellant.

Richard E. Green, Touchstone, Bernays & Johnston, Dallas, for appellee.

GUITTARD, Justice.

Plaintiff sues for medical expenses incurred for treatment of injuries to his minor son sustained when the son was riding as a guest in an automobile driven by defendant. The parties stipulate that defendant was not guilty of gross negligence. Our questions are whether the guest statute, Tex.Rev.Civ.Stat.Ann. art. 6701b (Vernon 1969), bars the parent's claim as well as the son's, and if so, whether it deprives automobile guests generally of equal protection of the laws. We hold that it does bar the parent's claim and that it does not deny equal protection. Accordingly, we affirm a summary judgment for defendant.

1. Applicability of guest statute

Article 6701b provides:

No person transported over the public highways of this State 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 injuries death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. ¹

Plaintiff contends that the cause of action for his son's medical expenses is his own rather than his son's, and that it is not within the literal language of the statute because he was not himself a 'person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest.' Consequently, he argues, he may base his recovery on ordinary negligence although the statute would deny recovery to his son under the facts stipulated.

This argument overlooks the requirement that a parent's recovery for consequential damages resulting from injury to a child must be based on a legal wrong to the child. No legal wrong is done to the child without breach of a duty to the child. Failure of the owner or operator to use ordinary care for the safety of a guest is not a breach of duty to the guest because the statute absolves him of that duty by limiting his liability to intentional misconduct or gross negligence. Thomas v. Southern Lumber Co., 181 S.W.2d 111 (Tex.Civ.App., Waco, 1944, no writ); Elkins v. Foster, 101 S.W.2d 294 (Tex.Civ.App., Amarillo, 1937, writ dism'd); 2 F. Harper & F. James, The Law of Torts § 16.15, at 951 (1956); Keeton, Annual Survey of Texas Law, Torts, 24 S.W.L.J. 3, at 19 (1970). Consequently, the parent of a minor guest has no cause of action for failure of the owner or operator to use ordinary care. Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934).

2. Constitutionality of guest statute

In plaintiff's constitutional attack, he argues that the statute denies equal protection of the laws because 'its sole purpose and effect is to bestow an immunity on a special group by imposing an invidious discrimination against innocent injured persons,' contrary to the guarantee of 'equal rights' in Tex.Const. art. I, § 3 (Vernon's Ann.St. 1955) and the 'equal protection' clause of the Fourteenth Amendment to the Constitution of the United States. We do not find this argument to be supported by the controlling authorities or by established principles of constitutional law.

a. The authorities

The constitutionality of the Texas guest statute has been upheld in three cases. Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593 (1938); Perry v. Harrod, 451 S.W.2d 821 (Tex.Civ.App., Amarillo, 1970, writ ref'd n.r.e.); Elkins v. Foster, 101 S.W.2d 294 (Tex.Civ.App., Amarillo, 1937, writ dism'd). None of the opinions cited specifies the ground of constitutional attack, ² but in Campbell, the supreme court calls attention to several decisions from other jurisdictions upholding similar statutes against attacks based on the equal protection clause, including the leading case of Silver v. Silver, 108 Conn. 371, 143 A. 240, 65 A.L.R. 943 (1928), aff'd, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929).

In Silver the plaintiff's principal contention was that the Connecticut guest statute, on which ours was modeled, ³ made an unreasonable distinction between a guest in an automobile and a guest in any other mode of transportation or in any other place, thus depriving him of equal protection of the law. Rejecting this contention, the Supreme Court of Errors of Connecticut recognized the automobile as a proper basis for the legislative classification in that it had a fair and substantial relation to the legislative object of control and regulation of traffic on public highways. The court held that the legislature acted well within the limits of the police power in making a distinction between the degree of care to be exercised by the owner or operator of a motor vehicle toward a guest and that to be exercised toward one who pays for transportation. That distinction, said the court, ran through many fields of law, for example, in the differing duties of a gratuitous bailee and a bailee for hire. The court saw inherent justice in the rule that one who undertakes to perform a duty gratuitously should not be under the same measure of obligation as one who enters upon the same undertaking for pay. Two dissenters insisted that the classification as between gratuitous guests in automobiles and gratuitous guests in every other possible situation and mode of transportation was unreasonable, arbitrary and served no public purpose. On appeal to the Supreme Court of the United States, the judgment was affirmed in an opinion which we shall discuss later. Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929).

Similar statutes have been enacted in more than half of the states, ⁴ and, on authority of Silver, they have generally been upheld against attacks based on the equal protection clause. ⁵

The only decision holding a statute similar to ours to be unconstitutional, so far as we have found, is Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973), upon which plaintiff here principally relies. In that case the Supreme Court of California in a carefully considered opinion holds that the California guest statute denies equal protection of the laws because of three arbitrary distinctions: (1) between gratuitous guests and paying passengers; (2) between automobile guests and other social guests; and (3) between different subclasses of automobile guests. The court declares that none of these classifications bears any rational relation to the purposes of the statute. It also holds that the statute is impermissibly broad in barring the recovery of honest as well as collusive guests. We shall consider each of these grounds separately.

b. Grounds of constitutional attack

(1) Guests and passengers

The California court characterizes the distinction between gratuitous guests and paying passengers as irrational in the light of its earlier decision in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), which abolished the longstanding common-law distinctions between the duties owed to business invitees, licensees and social guests, and imposed on landowners the duty to use reasonable care for the safety of all persons whose presence on the land might be anticipated. These distinctions are still recognized in Texas. In Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App., Dallas, 1971, writ ref'd n.r .e.), we considered the duty owed to a social guest in a home, expressly declined to follow Rowland, and followed Texas decisions treating such a guest as a licensee. Our supreme court has not written directly on the degree of care owed to a social guest, but it has consistently maintained the distinction between the duties owed to licensees and to business invitees. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208 (1943); Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941).

Moreover, in Massachusetts ⁶ and several other jurisdictions, ⁷ liability to a gratuitous guest for ordinary negligence has been denied as a matter of common law on the theory that to make out liability in case of a gratuitous undertaking the plaintiff ought to prove a materially greater degree of negligence than he has to prove when the defendant is paid for doing the same thing, although most courts that have considered the question in the absence of statute have held that the owner of an automobile owes a guest a duty of ordinary care so far as operation of the vehicle is concerned. ⁸

Since the distinction between the duties owed to social guests and business invitees is thus recognized in other contexts, our question is whether it is irrational when considered in relation to the purpose of the guest statute. The party attacking the statute has the burden to show that it is irrational because legislation is presumed to be valid. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588 (1948). We conclude that plaintiff has not carried that burden in this case. The purpose of article 6701b is indicated in the emergency clause, which recites that under previous law 'fraud may be perpetrated upon insurers of owners and operators of motor vehicles.' Tex.Laws 1931, ch. 225, § 3, at 379. It would be difficult, if not impossible, to demonstrate that insured owners and operators are not more likely to collude with gratuitous guests than with paying passengers, or, at least, more inclined to allow their testimony about responsibility for an accident to be colored by sympathy for guests who have accepted their hospitality. Any conclusion of this court that the distinction between guests and...