*1 mоre, 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
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 nеgligence. 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 cаse. 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,
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
Cоnstitutions, Henry
violated the federal
state
Bauder,
751,
213 Kan.
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,
ecоnomics 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,
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
cоnsistent
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.
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 Protеction 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 guеsts 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 consеquences 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
Proteсtion 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
dеnt, 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,
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 repеaling 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 evеn
absence
care
duty.’
of a
See,
formance
NJI No.
also,
7.51.
Olson
Shellington, 167
Neb.
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);
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 trаveling 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- оf 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, tоgether, 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 stаtute 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.