Whipple v. Howser

Citation632 P.2d 782,291 Or. 475
Decision Date11 August 1981
Docket NumberNos. 80-0708-J-3,s. 80-0708-J-3
PartiesHolly Jean WHIPPLE, Plaintiff, v. Mark Thomas HOWSER and Thomas C. Howser, Defendants. Mark Thomas HOWSER and Thomas C. Howser, Petitioners, v. Monique BEHRENDT, Respondent. ; CA 18103; SC 27337.
CourtOregon Supreme Court

William E. Duhaime, Medford, argued the cause for petitioners.

John W. Eads, Jr., Medford, argued the cause for respondent. With him on the brief was Frohnmayer, Deatherage, deSchweinitz & Eads, Medford.

Linda J. Rudnick and Clayton C. Patrick, Oregon Trial Lawyers Association, Salem, filed a brief amicus curiae.

TONGUE, Justice.

This is a civil action for damages arising from a two-car accident. Plaintiff was a passenger in one of the cars and named as defendants the owner and driver of the other car. Those defendants filed a third party complaint naming as a third party defendant the driver of the car in which plaintiff was a passenger and alleging that any injuries suffered by plaintiff were the result of negligence by the driver of the car in which she was a passenger and, therefore, if a judgment were returned against them they were entitled to contribution from third party defendant. 1

The trial court allowed a motion to strike that third party complaint upon the ground that at the time this accident occurred in 1978, Oregon's Guest Passenger Act, ORS 30.115, 2 required an allegation of gross negligence or intoxication, rather than ordinary negligence, for recovery in actions by passengers against owners or operators of motor vehicles and that the repeal of that act by the Oregon legislature in 1979 with regard to motor vehicles 3 was not intended to apply retroactively to actions which had "accrued" at the time the repeal became effective, but which were "commenced" after the effective date of that act. The Court of Appeals affirmed the trial court. 51 Or.App. 85, 624 P.2d 648 (1981). We allowed the petition for review because of the importance of the question whether retroactive effect must be given to the repeal of the Guest Passenger Act with respect to motor vehicles which had "accrued" before the effective date of that repeal, but had not been "commenced" until after the effective date of that repeal, and the apparent confusion among trial courts in deciding that question.

Or.Laws 1979 Ch. 866, which repealed the Guest Passenger Act as it applied to motor vehicles, includes the following "savings clause."

"Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act." (Emphasis added)

In allowing the motion to strike defendants' third party complaint, the trial court relied upon the decision by this court in Smith v. Clackamas County, 252 Or. 230, 448 P.2d 512 (1969), in ruling that the repeal was not retroactive as to actions which had been "commenced" after the effective date of that repeal, if such actions had "accrued" prior to that date. The Court of Appeals, by a 7-3 decision, affirmed. The majority of that court also based its decision upon Smith v. Clackamas County, supra, believing it to be controlling. 51 Or.App. at 90, 624 P.2d 648.

In Smith this court was called upon to interpret a "savings clause" essentially the same as in this case and held that the statute in question in that case was not to be applied retroactively to actions which had "accrued," but had not yet been "commenced" at the effective date of that statute. In reaching that conclusion the court relied primarily upon a "rule" of statutory construction to the effect that when an amendment is made to a "substantive" statute, as was the case in Smith, as opposed to a "procedural" statute change, the statute "is presumed not to be retroactive, and such a statute will not be applied retroactively unless the language of the statute absolutely requires such application." 252 Or. at 235, 448 P.2d 512. The majority opinion by the Court of Appeals also applied this "substantive-procedural" distinction, which it referred to as a "rule of statutory construction," in reaching the same result as in Smith. 51 Or.App. at 90, 624 P.2d 648.

Three Court of Appeals judges dissented, contending that the "overriding consideration" in determining whether a statute should be applied retroactively is the intent of the legislature and that the language of the "savings clause" in the present case expressed an intent to apply the statute retroactively to actions which had been "commenced" after the effective date of the act, regardless of when such actions had "accrued." They further questioned the validity of the decision in Smith. 51 Or.App. at 90 to 96, 624 P.2d 648.

In deciding the question presented for decision in this case, it must first be kept in mind that when construing any statutory provision the duty of this court is to "discern and declare the intent of the legislature." Fifth Ave. Corp. v. Washington County, 282 Or. 591, 596, 581 P.2d 50 (1978); See also ORS 174.020.

The starting point in every case involving a determination of legislative intent is the language of the statute itself. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978). This need to look first to the language of the statute has been frequently recognized by this court. In Swift & Co. and Armour & Co. v. Peterson, 192 Or. 97, 233 P.2d 216 (1951), we said (at 108):

"The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained."

Accord, State of Oregon v. Buck, 200 Or. 87, 92, 262 P.2d 495 (1953).

More specifically, in State ex rel. Cox v. Wilson, 277 Or. 747, 562 P.2d 172 (1977), we held (at 750, 562 P.2d 172) that:

" 'There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.' " Quoting United States v. American Trucking Ass'ns, 310 U.S. 534, 542-44, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940).

As also held in Lane County v. Heintz Const. Co. et al., 228 Or. 152, 157, 364 P.2d 627 (1960), quoting with approval from Barrett v. Union Bridge Co., 117 Or. 566, 570, 245 P. 308, 45 A.L.R. 527 (1926):

"Section 715, Or.L. (now ORS 174.010), directs that the courts in the construction of statutes, are 'simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted.' We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it." (Emphasis added)

Barring constitutional limitations, the legislature may impose any special conditions it desires upon its enactments. Moreover, this court has recently held that, with the exception of ex post facto laws, 4 there is no constitutional bar to the legislature providing that its laws be applied retroactively. See Hall v. Northwest Outward Bound School, 280 Or. 655, 572 P.2d 1007 (1977). Thus, in determining whether to give retroactive effect to a legislative provision, it is not the proper function of this court to make its own policy judgments, but its duty instead is to attempt to "discern and declare" the intent of the legislature.

This duty of the court to "discern and declare" the intention of the legislature has also been recognized by this court in the retroactive application of statutes on a number of occasions.

Again, in Joseph v. Lowery, 261 Or. 545, 495 P.2d 273 (1972), we held (at 552, 495 P.2d 273) that:

"(I)t is the legislature's intent that governs. Legal rules relating to retroactive and prospective application of statutes are merely rules of construction by which the court attempts to ascertain the probable legislative intent." (Emphasis added)

To the same effect, see Hemstreet v. Warlick, 281 Or. 579, 586 n.3, 576 P.2d 1 (1978); Spicer v. Benefit Ass'n of Ry. Emp., 142 Or. 574, 593, 17 P.2d 1107, 21 P.2d 187 (1933). See also Mahana v. Miller, 281 Or. 77, 80-81, 573 P.2d 1238 (1978).

Sometimes, however, it is impossible to "discern" the intent of the legislature regarding retroactivity or other matters from the language of the statute itself. For that reason, a number of "rules" or "maxims" of statutory construction have been developed to aid the courts in such cases in determining probable legislative intent as to whether a statute should be applied retroactively. We have held, however, that such "rules" or "maxims" of statutory construction are not to be resorted to if the language of the statute itself expresses the intent of the legislature. See State ex rel. Appling v. Chase, 224 Or. 112, 116, 355 P.2d 631 (1960); Curly's Dairy, Inc. v. State Dept. of Agriculture, 244 Or. 15, 20, 415 P.2d 740 (1966). See also Roy L. Houck & Sons v. Tax Com., 229 Or. 21, 30-31, 366 P.2d 166 (1961).

The reason for not resorting to such "rules" or "maxims" of statutory construction when the statute's language itself shows legislative intent is that such "rules" or "maxims" are not intended to be devices by which this court may substitute its own judgment for that of the legislature when its intent is not clearly expressed by the terms of a statute, but rather are meant to be "aids" by which the court may perform its duty to "discern and declare" the intention of the legislature when the language of a statute does not clearly express it. As also stated in Perkins v. Willamette...

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