Vogts v. Guerrette

• Decision Date: 02 May 1960
• Docket Number: No. 18834,18834
• Parties: Josephine Velma VOGTS, Plaintiff in Error, v. Rose M. GUERRETTE and Robert J. Guerrette, Defendants in Error.
• Court: Colorado Supreme Court

Page 851

351 P.2d 851

142 Colo. 527

Josephine Velma VOGTS, Plaintiff in Error, v. Rose M. GUERRETTE and Robert J. Guerrette, Defendants in Error.

No. 18834.

Supreme Court of Colorado, En Banc.

May 2, 1960.

Rehearing Denied May 23, 1960.

Robert E. Long, Janet K. Southworth, Alan L. Sternberg, Denver, for plaintiff in error.

Myron H. Burnett, Denver, for defendant in error.

KNAUSS, Justice.

The parties are here in the same order they appeared in the trial court, and we will so refer to them, or by name. Robert J. Guerrette is the husband of Rose M. Guerrette and plaintiff sought to fix liability as against him under the family car doctrine.

The complaint alleged that plaintiff suffered physical injuries entitling her to damages as a result of an automobile accident which occurred in March 1956; on this occasion defendant Rose M. Guerrette was driving the automobile owned by her husband; that plaintiff and her three children were passengers in said automobile; that at a point east of Deertrail, Colorado defendant Rose M. Guerrette drove said automobile 'in a willful, wanton, negligent, reckless and careless manner and at a high dangerous and excessive rate of speed' resulting in said automobile being 'violently propelled off of the said highway and into a barrow pit; that at said time and place the plaintiff was a fare-paying passenger.'

Defendants answered admitting the accident; denied that there was any 'negligence, willful or wanton, or reckless conduct' on the part of Rose M. Guerrette as alleged in the complaint, and further alleged that plaintiff was a guest in said automobile, within the meaning of the Colorado Guest Statute, C.R.S. '53, 13-9-1. Additional defenses were set forth in the answer which we need not here consider.

Following trial of the action, at which plaintiff's counsel urged the unconstitutionality of the Colorado Guest Statute, plaintiff was permitted to amend her complaint setting forth her contention that the Colorado Guest Statute is unconstitutional. The court directed a verdict in favor of defendants, and the action was dismissed.

Motion for new trial was dispensed with and plaintiff is here on writ of error.

The testimony discloses that defendant Rose M. Guerrette desired to visit relatives in Illinois; that she intended to take her infant child with her; that it was agreed that plaintiff and her three children would accompany her, and await the return of Mrs. Guerrette in order to return to Colorado.

On the day of the accident the four children were in the back seat of the automobile, and becoming unruly were admonished by plaintiff to quiet down. Later Mrs. Guerrette momentarily took her eyes from the road, turned toward the rear of the automobile and told the children to settle down. At that time the right wheels of the car left the pavement; that plaintiff said 'Rose, you are off the pavement' and Mrs. Guerrette immediately turned her attention to the driving and attempted to get the car back on the pavement, was unsuccessful in doing so resulting in the accident.

It is claimed that the relationship of host and guest did not exist in this case because there was testimony that Mrs. Guerrette did not care to drive alone and that plaintiff was to pay one-half of the 'cost of the gas and oil on the trip.'

A careful reading of the record shows that plaintiff was a guest in the Guerrette automobile at the time of the accident. Plaintiff was not being carried for the benefit of Mrs. Guerrette. We find no error in the ruling of the trial court that plaintiff was a guest, and that defendant Rose M. Guerrette was not guilty of the willful wanton, and reckless conduct in driving the said automobile prerequisite to recovery under the Colorado Guest Statute.

The principal matter urged by plaintiff in her brief and on oral argument is that the Colorado Guest Statute contravenes the federal and State Constitutions on various grounds.

It is said that the Colorado Guest Statute contravenes Art. II, Secs. 3, 6, 14, 15 and 25 of the Colorado Constitution and the Fourteenth Amendment to the Constitution of the United States.

The Colorado Guest Statute, C.R.S. '53, 13-9-1, provides:

'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. * * *'

Counsel for plaintiff contends that this enactment is unconstitutional in that it violates Article II, Section 6, of the Colorado Constitution which 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.', and relies chiefly upon the dissenting opinion in Noakes v. Gaiser, 136 Colo. 73, 315 P.2d 183, 185. The constitutional question here urged was not raised in that case, but was nevertheless commented upon in the dissenting opinion filed therein, in which it is stated:

'The quoted section of the Constitution (Section 6, supra) 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.'

The dissenting opinion in Noakes v. Gaiser, supra, states that other courts '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, attach conditions precedent to its exercise, and perhaps abolish old and substitute new remedies * * *, it cannot deny a remedy entirely.'' It goes on to state, 'In other words, the effect of the constitutional provision is this, that frozen into our law are those rights to recovery for injury to person, property or character which existed at the time of the adoption of our Constitution.'

The only jurisdiction in which a guest statute is now held violative of constitutional rights is Kentucky. Both the guest statute and constitution in that state are unlike their Colorado counterparts. Previously Delaware and Oregon had held then existing statutes unconstitutional, but later, as we shall show, it was held that subsequent amendments rendering the statute similar to the Colorado enactment did not contravene any constitutional rights.

If there be a constitutional provision preserving the common-law right of action for injury to person or property it must be found elsewhere than in Section 6. A case in point is Pickett v. Matthews, 238 Ala. 542, 192 So. 261 where the Alabama guest statute, which is substantially identical with the Colorado statute, was held to be constitutional and not in contravention of Section 13 of the Alabama Constitution which provides 'that every person, for an injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law.' The Alabama court in referring to Section 13, makes the following statements:

'That means that when a duty has been breached producing a legal claim for damages, such claimant cannot be denied the benefits of his claim for the absence of a remedy. But this provision does not undertake to preserve existing duties against legislative change made before the breach occurs. There can be no legal claim for damages to the person or property of any one except as it follows from the breach of a legal duty.

* * *

* * *

'Undoubtedly the right to the remedy must remain and cannot be curtailed after the injury has occurred and right of action vested, regardless of the source of the duty which was breached, provided it remained in existence when the breach occurred. * * *

'But Section 13, supra, does not in language, nor intent, prevent the legislature from changing a rule of duty to apply to transactions which may occur thereafter. If there exists any such prohibition it must be found elsewhere in the Constitution.' (Emphasis supplied.)

A fortiori Article II, Section 6, of the Colorado Constitution provides that 'Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, * * *.' As stated by the Alabama court 'this provision does not undertake to preserve existing duties against legislative change made before the breach occurs.'

The common law of England was not preserved in this state by the Constitution, nor by a subsequent amendment thereto. Its application in Colorado depends upon legislative enactment, and is only of full force and effect 'until repealed by legislative authority.' C.R.S. '53, 135-1-1.

The statutory provision is as follows:

'135-1-1. Common law of England.--The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British Parliament, made in aid of or to supply the defects of the common law prior to * * * (the date is set forth) shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.' (Emphasis supplied.)

A case construing this enactment is Colorado State Board of Pharmacy v. Hallett, 88 Colo. 331, 296 P. 540, 541, wherein the court stated:

'At the first session of the legislature of Colorado Territory in 1861, the common law of England, so far as the same is applicable and of a general nature, and all...