*1 more, charge the dismissal of the plaintiff procured the check the benefit of paying receiving doubt fraudulent intent. The termi- question nation of prosecution under such circumstances will not sustain an action for malicious See prosecution. Annotation, 67 A. L. R. 513.

We conclude that judgment District Court is correct.

Affirmed. Joseph Diane Botsch, appellant, Neeld Reisdorff appellees. Marohn, and Christian 226 N. W. 2d 121 February 18,

Filed No. 39581. 1975. *2 Healey, Healey, A. Brown, William Wieland Wie- appellant. & land Burchard and Fredrick Swartz, L. for Ray appellee Simmons, C. Marohn. '

Heard before J., Spencer, White, Boslaugh, C. JJ. McC'own, Newton, Clinton, Brodkey, White, C. J. growing guest passenger

This is an action out of a arising automobile accident from an automobile-tractor County, collision in Nebraska. Plaintiff and de- Butler stipulated judgment fendant Reisdorff in favor of be entered plaintiff against Reisdorff in the sum of judgment $8,500, and such the District entered theory plaintiff’s Court. case is that the acts n negligence alleged petition of ordinary in her constituted both gross negligence. appeal, On n challenges constitutionality -guest statute, Equal 39-6,191, section R. R. under the Pro- tection Clause the Fourteenth Amendment the Con- comparable stitution of the United States and the complementary provisions under the Constitution of the presented State Nebraska. The issue is also -asto the *3 sufficiency gross of the evidence to submit- the of issue negligence jury. The trial court refused to sub- mit this issue and directed a verdict for the defendant ... Marohn. guest

holdWe that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment any the Constitution pro- States, the United nor vision of the Constitution of the State Nebraska, and upon reverse remand and the cause for trial the issue gross negligence. guest Our statute, section pro- 39-6,19.1,R. R. 1943, S. parts pertinent vides in to the issues here as follows: operator “The or owner of a motor' vehicle shall not be any damages any passenger liable for ing person or rid- guest such motor as a vehicle or invitation damage hire, and not for unless such is caused * * * gross negligence driver because of the of the own- operator operation er or in the of such motor vehicle. purpose guest For section, this hereby the term 168

defined, any a ride accepts who being person therefor compensation giving without vehicle motor ^[*] ^[*] ^[*] es- same containing statutes guest

Motor vehicle attack, have under constitutional now principles sential and states, one-half than in more the. adopted been or owners operators automobile the principle their guests liability passengers from relieved judicially imposed has been conduct ordinary negligent in, Prosser, (4th Ed.), 34,. Torts § See more states. still in the twentieth ,18,6. early their inception Ever since p. under continual attack have been statutes century, guest similar grounds federal constitutional and state on both the at- in this case. Notwithstanding raised those the United States Court Supreme and tacks, the states as ours constitu- statutes such consistently held have 57, U. See, Silver, v. 280 50 S. Ct. Silver tional. Brown, 260 Rogers Neb. (1929); L. Ed. Almost the total plain- thrust (1935). N. W. 794 a contention that statute is attack upon tiff’s of' authority adopt reasoning this court should Merlo, Court Brown Cal. Supreme the California 388, 506 P. 2d 212 Rather 106 Cal. Rptr. 3d our decision on the simple proposition than rest is still the law land and that we adhere to Silver contentions of the which in it, examine the we that modern condi- upon argument turn based economic, tions, reconsideration social demand other rationale and cases us require Silver to hold our statute unconstitutional'. determine, Merlo, far can since

So as we Brown of six states have considered their supra, courts violated the statutes Protection Clause of Equal *4 the federal or their Constitution. Four either own states that state nor federal have held neither Constitution their guest Gatchell, was violated statutes. Justice v. (Del., 1974); 325 2d 97 217 Keasling Thompson, A. Oviatt, 2d 520 2d (Iowa, 1974); N. W. 687 Cannon v. P.

169 883 565 (Utah, 500 W. 2d 1974); Harrison, Tisko v. S. (Tex. Civ. Two courts have held their 1973). state App., it unconstitutional, statutes one on grounds Constitutions, Henry violated the federal state Bauder, 751, 213 Kan. 518 P. 2d 362 other (1974), only North Dakota case the state grounds Constitution was violated under its constitu- particular tional 771 Hassett, context. Johnson v. 217 N. 2dW. (N. D., 1974). test, under the Fourteenth Amendment States,

Constitution the United when a state statute out operates single treat- class people special ment, suspect classification bears some rational legitimate relationship purposes In legislation. Dandridge Williams, 471, 397 U. S. 1153, 25 L. Ed. S. Ct. 2d 491 (1970), very case, recent the United States Supreme said: Court “In the area of welfare, economics and social a State does not violate the Equal merely Protection Clause because the classi- fications made its are laws If the imperfect. classi- fication has some basis,’ ‘reasonable does it not offend the Constitution simply because the classification ‘is not made with mathematical nicety because in practice ** * it results in some inequality. The problems of government ones and practical may if justify, they - do not require, rough accommodations illogical, may * * * be, and A unscientific. statutory discrimination not set if will be any aside state of facts reasonably may * * * be conceived to it. justify But Pro- Equal tection Clause does that a require State must choose attacking between every aspect problem or not at- * ** tacking problem all. at It enough action rationally State’s based and free from in- vidious discrimination.” See, also, Lindsley v. Natural Co., Gas 220 U. Carbonic S. Ct. 55 L. Ed. (1911); Maryland, McGowan v. U. S. 81 S. 1101, 6 L. Ed. 2d 393 (1961); Ct. San Antonio Independ-

170 1278, 1, Ct. U. 93 S. 411 Rodriguez,

ent v. School Dist. 2d (1973). 36 L. 16 Ed. a nonpaying is that broadly the contention

Stated is in that he special is out for treatment singled negli host for of his against the cause denied action is, following The contention inflicted injuries. gently supra, state is no Merlo, legitimate there Brown v. that the basis interest this classification justifying of fraud of and the prevention promotion hospitality, court, therefore, before the collusion. The question, and of above, is the denial pronounced under test to automobile a for inflicted negligently injuries remedy state related aforementioned rationally is guests First, is “protection purposes. contended.that by making cannot sustained be hospitality”.justification other in automobiles a distinction between and guests because reasoning This is guests. inappropriate social California, Nebraska, law of the State of contrary a a owed tres make distinction duty does between invitee, a a licensee or social passer, guest. business 211 410 190 Neb. N. Addison, v. W. 2d Casey See words, other the contention of the plaintiff In. Christian, is based the case of Rowland partially upon 108, 70 (1968), 69 2d Cal. P. 2d 561 Rptr. Cal. statute, guests the California hold together can demand from their for ordi liability host generally words, In nary other the distinctions as negligence. liability that Nebraska draws in different classes law with the made liability consistent distinctions as to in other areas and the in conduct contention an for or irrational vidious discrimination cannot be applied under current law. Nebraska again next argues, following Brown Merlo, supra, holding host lower standard for care irrational nonpaying justi- not by fact that fied did pay consideration. this contention. In the reject basic and controlling Silver, case Silver Conn. 143 A. (1928), Supreme affirmed Court, the United States court pointed duty imposed out distinction between grautitous performance case of services and performance running of them hire for is to found (cid:127)through many higher example, law, fields de gree required carriage of care for hire in the com types mon carrier over carriers, other and the com *6 .món historic distinction in between business ordinary guest. vitee and the Silver, social In Silver (1928), 108 Conn. 143 A. 240 “There it is stated: justice requirement inherent in the that one who under perform duty gratuitously takes to should not be under obligation upon same the undertaking as one who the same enters * * * * * pay for *. It seems to us that legislature acting well within limits police power making degree in a distinction between the by operator of care to be exercised the owner or of á motor vehicle toward a and that to be exercised pays transportation.” leg one who for toward his The judicial'minds years past islative and in 50' have con sistently' paying héld that this distinction between gratuitous guest rationally precedence could take legislative engineer mind over and above the social ing shifting liability negligently notion of for inflicted injuries general to a on to hosts or to the motor ing liability public’s insurance. Wé, therefore, hold Legislature by reasonably and 'did could act differ entiating between standards of care owed on the basis of compensation paid,'and that no invidious discrimination present in the enactment of such a standard. plaintiff following contends, The Merlo, Brown v. . supra, prevalence-of liability that the automobile insur- nowadays by carried- drivers has eliminated the ance notion of

ingratitude suing in a his host for or- dinary negligence. contrary, legislative jus- On the may ingratitude tification still well be founded on the simple despite for element reason that insurance rationally ingrati- it' still could determined that the A to inhibit hospitality. tend element would tude found can be considerations these thorough review re- We will Casenote, 53 Law Rev. 267 Neb. have cases injury Many personal all them. tort view in judgments to result continue past in the will In limits. liability insurance host’s which exceed the relatively limits are Nebraska, statutory policy required fact Moreover, R. 60-509, R. 1943. low. See S. § any have do not drivers that a number significant R. 60-509.01, R. section insurance is evident liability to coverage motorist’s uninsured requires which insurance In liability policies. automobile be offered in inhibit hospi- for which short, ingratitude possibilities insurance, and the liability Legis- still exist tality despite legislation stand rationally allowing lature acted is no merit cured this evil. There this contention. contends, Brown v. pursuant again supra,

Merlo, the limitation of redress guest’s cannot be injuries rationally justified negligent the Ne- the desire We hold promote hospitality. braska could believe that more Legislature reasonably *7 in force being results from the statute hospitality guest course, it. of in realize, balancing than without the We in the guest considerations enactment of the present statute, that the well decide to reevalu- Legislature may weight many ate the considerations varying determinations in enactment thereof. the policy present not function to area. may It is a enter that judicial that the is further observe statute not guest perhaps its ends. But designed accomplish such perfectly met, not and not when design especially need could be to thread its and make a attempts way law balanced multitude of among decision the considerations are the social and economic context this in of statute. present have out the Protection pointed Equal As we Clause does nor such such standard require perfection, rigorous rationality as is contended in this case. is It well improvident laws, if settled that based even unwise upon conception, pass con- sort a rational can some stitutional muster. briefly very other considerations that

We summarize conceivably rationally be to the enactment could related regulation guest of a of motor vehicle use statute. legislative occupation, seen, is a valid as have we guests validly distinguished automobile can be from guests in other social the State of Nebraska. We observe money goes highway much in Nebraska into state Since, construction and state maintenance. as have we guest rationally the held, statute can be conceived en- courage hospitality, it affects both the number of cars mileage highways, and the total cumulative directly on the bears state’s economic burden. In the way, promotes statute same of the conservation petroleum and other natural resources which are highway consumed travel. We fi- observe consequences against nancial by to a host in a lawsuit him very significant automobile con- degree potential physical injury text because the great, very especially comparison injuries with suf- by guests liability fered in the other context law. argument may respective Whatever weight many go making considerations which into Legislature decisions, these it clear that is the proper decision-making forum in which to strike the matter, in the usurp balance court this will not legislative function.

Although foregoing reasons alone are sufficient to provisions against sustain contention our constitutionally discrimination, inviduous necessary strongly urged we deem consider the plaintiff, again pursuing contention Brown v. supra, rationally Merlo, that the statute is not related legitimate purpose preventing to a collusion and *8 It (cid:127)fraud. is said that this is so because statute elimi- nating ordinary negligence the cause of action for for all a n small segment only guests when automobile suits, example a classic may was file collusive class impermissible, classification over-inclusiveness contrary or of fairness traditional motions might passengers paying It is stated

reasonableness. situations and relatives various friends often include and parties relation of their closeness of because ordinary likely proving negli- might be to collude still gence statute does not reach them. because guests nonpaying it is Further, stated the class unlikely host is hitchhikers with whom the includes It is also that the statue is ineffective as collude. stated remedy remedy for and that the for collusion collusion integrity discovery of truth our lies in the system. adversary

Again, requires this contention falls because it more Equal than the Protection Clause impermissible The notion mandates. over-inclusive place equal pro to have ness has been held no in the analysis regulations of social and economic tection affecting' guaranteed by Rights. Bill freedoms In supra, Dandridge Williams, it is stated as follows: approve “For Court this invalidation of state regulation ‘overreaching’ economic social would be thought an far too reminiscent of the Fourteenth Amendment era when the Court gave power to strike may they improvi unwise, down state laws ‘because harmony particular dent, or out of with a school of thought.’ Optical Lee Co., Williamson v. 348 U. S. long ago passed history. Ferguson 488. era 372 into That Skrupa, Railway Express See, also, U. S. 726.” Agency, York, Inc. S. 106, U. v. New 69 Ct. (1949); supra. Keasling Thompson, 93 L. Ed. 533 argument point majority this assumes that the out guests only honest, and hosts and that a small num collusively. Casenote, ber would act 53 Neb. Law Rev. specula But it is obvious this mere responsible tion. There data available, is no so far as *9 majority the of automobile knows, this court on whether including guests in areas, or not. other are honest As separate the classes of cáses in which burdens various reasonably judicially required, proof it of are con- ground by Legislature ceived the to determine that the great; very temptation of actual incidence fraud is or especially or that collusion is to or detect; difficult that judicial system responsible having the should not be for Legislature reasonably A or a to detect fraud. court is justified believing requiring in the alternative of that degree guest higher proof cases, of in automobile example requiring a of clear and standard conclusive preponderance of a evidence, evidence instead of the controlling problem a definite factor in the of collusive and losses. fail to see lawsuits the difference be- acknowledged power by judicial an tween decision or legislation higher degree proof to invoke a of in certain requirement guest classes of cases and the of the statute proof higher degree negligence. as to of of Whatever may policy merits a matter the be as of under the may changing present society conditions in to- day, say Legislature we cannot that the has un- acted reasonably choosing deny ordinary negligence in the of action in a cause wholesale manner where it felt the greatest potential for collusion We, existed. therefore, Legislature irrationally hold the did' not act choosing prevention the collusion and fraud one as adoption guest the reasons for the of the statute and a proof negligence. different standard for the Consequently, guest we hold that the Nebraska statute presently enacted, is not violation of’ the federal Constitution, state the and the contentions of unconstitutionality the as to its are' without merit. by legis-

Our decision this matter is reinforced the history attempts repeal guest lative tó the statute. years Legisla- the recent matter has In been before the repeal guest has elected ture statute. repeal Legislature the session In guest Judiciary presented Committee statute was reported out for consideration in L.B. 555 and indefinitely postponed a vote of floor. The bill was purpose the had as its In L.B. to 10. repealing its statute, was withdrawn Legislature, sponsor. L.B. intro- the 1972 1461 was In repealing purpose statute, but duced for legislative minimum, also withdrawn. At repeal history attempts viability and force that the conclusion consistent with *10 purposes arguments of of the for the retention the of very guest alive. the statute are still much applicable the statute is we now consider Since question the of the evidence under facts whether the in this case was sufficient gross

to submit the issue jury. negligence to the background general that on November

The- factual plaintiff, the Diane 16, 1966, Botsch, Neeld was Chrysler defendant, a 1964 sedan driven the in pro- dusk, At the Christian Marohn. Marohn car was ceeding up grade a hill and had started the the down slope next or hill when in with the was collision by Joseph Reisdorff, tractor both and driven car tractor being operated west southbound lane highway. collision, As the result seriously injured. applicable rules that we use to evaluate evi- recently dence have stated in the been case of Demont Mattson, 277, 188 Neb. v. Therein 196 N. W. 2d “ negligence’ said: ‘Gross we the mean- within ing great of the automobile exces- negligence very negligence, high degree. sive in a slight per- It indicates of even absence care duty.’ of a See, formance NJI No. also, 7.51. Olson Shellington, 167 Neb. 94 N. W. 2d 20. Where several negligence supported by acts are the evidence ‘no one segregated weighed separately act is to de- gross negligence. termine not it whether or constituted Instead the several acts are to as a whole.’ be considered supra; Shellington, NJI No. 7.51. See, also, Olson v. Carley Paxton Nichols, 184; 157 Neb. 59 N. 2dW. * ** Meinke, 181 Neb. 150 N. W. 2d 256. This frequently slightly varying court has lan- reiterated guage gross negligence as- exists must be par- from certained the facts and of each circumstances any ticular and not from case definition or rule. fixed Maragues, supra.” Boismier v. presented,

Under the issues we examine the evidence keep proper as to lookout; failure defendant to keep failure to his automobile under reasonable control; operating and that he was his at an vehicle excessive speed. rate

Resolving the conflicts and the inferences from the plaintiff, required evidence in favor of the we following do, the evidence shows facts: As de- proceeded slope immediately fendant down the before headlights highway collision, his were on. The had painted dividing line and both the defendant’s car and the tractor with which he was in collision were on west and southbound lane traffic. At the time of the proceeding collision the tractor was south at a rate of per 16 miles about hour. Three witnesses testified that prior they a short time to the accident saw the tractor *11 light a with white at the rear of de- the tractor. The fendant testified that he did see the tractor headlights beam of his it until was 100 feet from his car.

At time, that he had his foot on the accelerator. He applied impact brakes, his but the occurred at almost headlights. the same time that he saw the tractor in his yellow The tractor was clean and had wheeled rims. light There is evidence also that there was to sufficient headlights make the tractor visible without the aid of lights. consistently negli- or rear haveWe held that it is gence aas matter of law for a motorist to an drive auto- highway mobile on in such a manner that he cannot 178 object an within

stop with a collision in time avoid Forburger, range 161 Neb. v. Guerin of his vision. Murray Appli (1956); Pearson 2d 870 824, 74 N. W. (1952); Pool 2d 250 N. W. Store, Neb. ance (1964); 131 N. W. 2d 593 Romatzke, Neb. Dumpert, 568, 162 2d 520 N. W. Neb. Kehm v. directly (1968). was ahead defendant The tractor proper of traffic. It also in its lane was ahead of him approximate speed traveling and at forward an rate overwhelming per The miles hour. evidence is of 16 range his and discernible within that was visible lane of in his own traffic and discoverable vision ahead headlights. his No excuse or reason beam of within the properly appears for his failure observe the tractor. permit finding this case does not The evidence in excep within defendant’s actions came one range usually of vision tions rule relates object ahead or was visible discernible. speed, later which will be dis element Outside cussed, applicable conclusion, to the we come under testing of the evidence, rule the defend as negligence guilty of a matter ant law. evidence as to consider the issue reasonable A control of the defendant’s vehicle. driver of a motor have his vehicle should automobile under such reason- him able control as will enable to avoid collision with assuming vehicles, other drivers thereof are exercising Patrick, care. Paddack v. due 163 Neb. Spomer (1956); 79 N. 2d 701 Electric W. Allied &Fix- Co., 399, 232 ture 120 Neb. N. W. 767 There Is when evidence that the defendant saw the tractor 100 headlight beam, feet ahead in his the accident occurred simultaneously application his with almost of the brakes. investigating any did not sheriff find skid marks gouge impact mark north' of the first which marked the only testimony location. The inference from this is that any attempt the defendant did not or was unable to make hitting.the to turn aside to.avoid tractor which was *12 traveling speed in ahead and a reasonable at rate Independent the same lane of traffic as the defendant. proper lookout, of the evidence as to lack of a evi- the indisputable dence is the that after defendant saw the tractor he was unable to control his automobile so as colliding readily to avoid with the It is also tractor. plaintiff’s inferable from the that the tractor evidence being operated negligence. without It is therefore ample clear that there was sonable control. evidence on the issue of rea- goWe now issue the defendant’s excessive speed degree and the of it. The defendant himself testi- speed fied that he did not at know what he was travel- ing. witness, One Vlach, Richard testified while he traveling approxi- was mately way his car at a constant rate of per High-

60 miles hour and southbound on State passed by No. 15 he was defendant’s car short distance before the scene the accident. Distance measurements were made defendant Reisdorff and introduced in evidence. Plaintiff in her brief calculated speed traveling at .which defendant’s automobile was between the time Reisdorff first saw the defendant’s cresting impact finally car hill and when the oc- argues curred. Plaintiff this evidence indicated that traveling per defendant’s car was around 90 miles just impact. disputes argu- hour before Defendant this impact ment. Further evidence showed that the part body open, broke collision tractor grease highway. there was transmission and oil on the investigating sheriff testified that the distance be- gouge highway tween the northernmost marks pushed and the tractor indicated the tractor had been a distance of 129 feet. Other evidence as to the size and weight pounds, tractor, 5,000 lead to no other traveling conclusion than that the defendant was at a dangerous speed reckless and rate under the circum- testimony stances. There was additional to the effect riding that mother, defendant’s in the back seat speed his defendant watch car, had warned *13 carefully. drive to in all the evidence of whether In the determination gross specific the issue submit a case sufficient consistently jury held that negligence the we have danger presence to, visible known of imminence the by, persis- together a driver, a with or made known to consequences, negligence heedless of the tence in controlling, given material, if not consider- to be factors Landsman, 192 223 Zoimen v. Neb. N. ation. 2d W. (1974); Thorpe Zwonechek, 177 129 Neb. (1964); Mudd, Gummere Neb. N. W. 2d W. 622 297 N. negligence together. the acts of Not consider

We favorably only evidence, construed most to the does gross keep plaintiff, a failure defendant to indicate light especially proper in lookout, of the fact that the traveling prop- of him was forward in his vehicle ahead it also traffic, but indicates that this failure er lane proper keep a lookout was combined with contin- operation persistent at a uous and reckless excessive speed up point addition, rate of to the of collision. In ample opportunity evidence shows that was the turn aside there or otherwise avoid the collision with the mov- ing in front of him. There' tractor violation of range negli- rule of vision which we have held to be gence a matter of law. hold that the evidence negligence, together, as to the various issues of taken amply sufficient for were the submission of the issue of gross negligence jury defendant’s and that directing in error in court was verdict for the defendant. parties

Other contentions of the have been considered and have been found to be without merit. judgment of the District Court is reversed and cause remanded for a trial. new

Reversed and remanded with directions. J., part. dissenting McCown, of the majority opinion

I from portion dissent constitutional. Nebraska holds the which Hale v. dissent my are set forth in reasons The basic 2d 378. 298, 220 N. W. Taylor, 192 Neb. sup- made in may be logical arguments

Rational and regard- views two divergent judicial of each of the port statutes. of automobile constitutionality ing unequal jus- conflicting viewpoints, In weighing thousands guest passengers tice visited upon the critical becomes name of legislative public policy of the in favor justice which the scales tips weight the law is denied determination that equal protection statute. factual as- denies that really many No one rise to basic gave philosophy sumptions *14 drastically have disappeared changed statute guest 1931. in Nebraska in adopted since the statute was statute Legislature, repeal pend- must now deter- Obviously, Legislature ing again. mine, modern of automobile light concepts social factual assumptions travel and whether policy, initial of the automobile adoption supported and, so, in 1931 are if present, still the continuation re- justify public policy they the Nebraska statute. flected by I concur in the there was suf- determination ficient evidence of in this case to re- gross negligence case to jury. submission quire minor, her Gertsch, father, Debra next friend appellee. v. Louis G. Gertsch, appellant, Gerber, Von 226 N. 2d 132 W. February 18,

Filed 1975. No. 39562.