*1 47,101 No. Friend,
Terry next her Father Through A. By Henry, Kennyth By W. Bauder, Appellant, Thomas Henry, Friend, M. Bauder, and next his Father Thomas Through Appellee. (518 362) P. 2d Opinion January 26, filed 1974. Norris, Olathe, argued cause, G. Michael was on the brief for the appellant. Brown, Park, argued cause, Barton Larry Austin, Overland Park, appellee. Overland was with him on brief for Kelly, Wichita, Lawyers Patrick F. Association, Kansas Trial was on the brief curiae. amicus The of the was court delivered by This case involves Prager, constitutionality of the Kansas J.: statute, K. S. A. 8-122b. On 16, 1971, October the plaintiff- A.
appellant, Teny Henry, sixteen-year-old girl, was a guest pas- in an automobile senger operated by defendant-appellee, Thomas W. Bauder. collision occurred and plaintiff suffered injuries. original severe personal action in district court in- an additional defendant who volved driver of the other However, is only vehicle. appeal concerned with that portion which charged the defendant petition Bauder with portion plaintiff’s trial court dismissed
negligence. as follows: statute which reads of the Kansas claim on the basis *2 operator. damages That Right owner of to collect or “8-122b. vehicle, operator by transported of motor as his person the or owner no who is transportation, of action for guest, payment shall have cause for such without damage, operator injury, against death or unless damages owner or such gross damage and from the wanton injury, shall have resulted or death such operator vehicle.” of such motor of the nonpaying guests statute is to to deny the effect of The practical failed use reasonable care the driver has to where at all any remedy is legally The driver liable only his automobile. of in the operation constituting act of some recklessness guilty has been he where misconduct. or wanton wilful of the Kansas constitutionality the stat- assails
The plaintiff
First,
contends that
the
act
plaintiff
theories.
on two
ute
a “remedy by
of
due
course of
a guest
her as
deprives
Rights
Bill
of
Kansas
18
of
the
Constitu-
of
Section
under
law”
is
violative
of the
Second,
contends
she
tion.
Fourteenth
of the
Amendment to the
provision
“equal protection”
statute discriminates
between
Constitution
United States
in a
which
manner
bears no
passengers”
and “paying
“guests”
the legislation.
of
purposes
plaintiff’s
to
relationship
rational
has been raised
several
unconstitutionality
previous
of
theory
first
Resner,
this court.
by
(Bailey
168
rejected
Kan.
and
cases
Kansas
Pizel,
328;
214
P. 2d
and
Wright
214 P.
62,
her that question consider as a will matter of first im- this state. the issue on its determine merits. The equal and protection pression Fourteenth Amendment to the United States clause Consti- 1 and counterpart its Sections finds of the Bill of tution Rights which Constitution declares in Kansas substance that “all equal and inalienable possessed are natural rights, men among life, and liberty pursuit are happiness,” which that “all . . . are instituted governments the equal free protection of the people.” benefit While these two provisions of our Bill truth, declare political Rights they are given much the same due relating Amendment the Fourteenth effect as the clauses of Co. v. Hotel law. (Tri-State of the process equal protection Co., Hotel In Tri-State Londerholm, 748, 408 P. 2d rules to concisely govern set forth clearly Mr. Fatzer Justice issues determining pertaining the courts of state he There enactments. stated: constitutionality legislative legislature, but critic of the “This not made the court Constitution rather, Constitution; every legislative guardian act comes before presump- constitutionality. presumption That this court surrounded with the clearly appears some tion to contravene continues until the Act under review provision invalidity be resolved favor All doubts of must Constitution. desirability province weigh the law. It is not in our of social eco- policy underlying question wisdom; purely nomic or to its those are the statute legislative legislature matters. . . . a wide dis- While the vested with public cretion to determine for itself inimical to the welfare which is what is fairly designed protect against might public otherwise the evils occur, cannot, police unequal, guise power, it under un- enact *3 oppressive legislation reasonable or If or that which violates the Constitution. provided the arbitrary, classification . . . has no reasonable relation objects sought attained, legislature to be transcended limits of its power interfering rights in persons by with the of . affected the Act. . .” (p. 760.) In Schwiethale, 596, Pinkerton v. 200, 493 P. 2d stated we that reasonable classifications of are persons permissible, for it is only invidious discrimination which offends. A classification em- in ployed the exercise of police power arbitrarily. cannot be made Any distinctions inherent in a classification must furnish particular a proper and reasonable basis for such a The classification. concept of equality of all is, course, citizens under the law of basic to our free society. We have stated that classifications not be created arbitrarily, discriminatorily unreasonably, or the principle of would equality be violated. There must be some difference in character, condition, situation, distinction, to justify and this difference must bear just and proper relation to the proposed otherwise, classification and regulation; the classification is forced unreal, are, and greater fact, burdens in imposed on some than on others of same desert. Heitman, State v. (The 139, 181 Pac.
The United States Supreme Reed, Court in Reed v. 71, 30 404 U. S. 225, 251, L. Ed. 2d 92 S. Ct. declared that the equal protection clause of the Fourteenth Amendment to the United States Constitution, does not deny to the states the power to create distinct classifications of persons different The ways. equal protection clause of that does, however, power legislate to a state deny
amendment by persons placed accorded that different treatment be wholly basis criteria unrelated to on the into different classes reasonable, not classification “must be statute. objective having some of difference ground rest upon and must arbitrary, so that object legislation, relation to the fair and substantial shall be treated alike.” similarly all circumstanced persons case is to determine essentially presented problem provided under Kansas of the classifications the reasonableness short, statutory classification between “non- In is the guest statute. it arbitrary reasonable or is guest” “paying passenger” paying die February of 1973 Court of Supreme and unreasonable? Merlo, 3d 506 P. Cal. California, in Cal. Brown un- California and held it considered the Rptr. denial of the law as embodied equal protection as a constitutional Amendment to Constitution and Fourteenth California court considered and Constitution. In Brown the the United States law equal protection governing the basic applied principles Supreme Court held which are set forth above. California unconstitutional for reason that that state e., “guests” passengers give who statute withdrew from automobile i. ride, against the protection negligently for their no compensation California law affords to all others. generally inflicted injury with the We are sound rationale Brown. impressed of California reached Court Brown Supreme The result with our is reasonable and in accordance concept our judgment justice under law. equal statute, 8-122b, S. A.
We hold that the Kansas K. uncon- protection as denial law under equal stitutional void *4 the United States Constitution and the Fourteenth Amendment to the Kansas Bill of this Rights. reaching 1 and 2 of Sections do of the of the conclusion we do not so on basis wisdom on the that the in the statute provided basis classifications solely but are and discrimi- by judicial arbitrary our decisions interpreted and have no rational basis. natory
Prior to the enactment of statute in guest Kansas in 1931 this that it was the rule of court the host driver of an his to expose guest passenger by should not risk of harm act or conduct, violates the omission which common standard of the con- Weinrich, of a man. duct reasonable Kan. (Howse where days and buggy to horse Pac. rule 'back goes That 291, 293, that the (1877),, Sivey, we in held Mayberry who gratuitous all those render including law persons, requires This person. of life and services, safety care for the reasonable the United States. is throughout the rule followed generally citizen that society basis of rule and is in a free injure person should be his tortious acts whioh responsible for property placed upon guest others. The law also his correlative exercise due care for own duty protection. to Connecticut enacted the first statute in that state also was the first its in state 1937. Automobile repeal guest statutes in have been more than one-half of adopted slightly all states. in of an They provide substance driver automobile is liable to one who is as a in riding gratuitous guest his car for only some form of aggravated misconduct. There is so statutes, much individual in the and in variation their interpretation, that it may safely many said that are as different guest there laws as there Ed., 5, 34, are 4th (Prosser, acts. ch. Torts Es p. 186.) § sentially theory of acts one who a gratuitous receives favor in the form a free ride right has no to demand that his host shall exercise not to ordinary care him. injure Professor Prosser describes guest act case as that of the typical who driver offers his friend lift dinner, to the office or him out invites negligently collision, drives him into and fractures his skull— after which the driver his insurance company refuge take statute. review of legislation throughout United States presented Badame, some depth Delany v. 49 Ill. 2d 274 N. 2dE. 353. Several states repealed their statutes, the most recent of which is Florida which did so in 1972. Significantly, no state has enacted a guest statute since 1939.
Following its enactment Kansas statute has been before court interpretation cases. It has caused the court a deal great of difficulty determining is a who guest, what constitutes payment transportation, and what acts of the driver are sufficient to constitute wanton misconduct. overall impact statute was well described Mr. Justice Price he when made the following observation in Bedenbender Walk, 531, 280 2dP. 630: plaintiffs’ concede “We there is merit contentions that the statute has
denied innocent victims of the carelessness and *5 756 ‘guests,’ that as they classified have been because drivers
automobile negligence arising the from many burden the times has shifted the thus statute 536.) (p. victim.” innocent of driver to the the crazy-quilt pat- a of this court reveals the decisions A review of recovery permits guest the act which of application tern of of Some these in others. and denies situations factual the result- the statute the inequities show clearly decisions situated. In order similarly persons ing justice denial of equal in a motor transportated must foe guest act to the apply the P. 2d Hayden, In In re Estate vehicle. meaning within the a motor vehicle is not we held that an airplane could nonpaying and therefore a of 'the statute In case we pilot. recover for the “to who are applied persons the guest only declared that vehicles, on the high- or motor owners foy operators transported held that term the statute we ways applying state.” orm to the defini- in the should conf “motor vehicle” used vehicle code which tion a motor vehicle contained motor defined a device every upon person vehicle as where Although not highway. directly on involved public he drawn of the decision infer reasonably that case rationale would does not where an automobile apply injury not lot looated on the driveway parking occurs private public Ordinarily relating specifically solely statutes highway. do public highways vehicles on operation pertain Bassett, on of vehicles operation private property. (Smith 128, 132, P. 794.) 2d Under rationale the guest not, course, statute would to a applicable nonpaying guest boat riding while in motor since did not injured injury occur on highway. a public
We have held that order for the guest statute to be applicable injury during must occur the course the trans portation. Where was nonpaying process of entering injured was when the driver suddenly drove forward, the injured guest deemed not to be was one who was being within transported meaning statute and therefore could recover driver’s ordinary negligence. Parker, (Chapman 454 P. A different rule however, where the applied, ride had been completed the injured guest, having vehicle, departed was in the process of the door closing of the automobile when it suddenly *6 held to statute guest the that situation moved In forward. (the of wanton on only proof recover could guest and apply injured 2d 349, 1190.) 205 P. v. Hogeboom, misconduct. (Marsh the law under differently be treated entering guest Why should an a than guest? departing the sufficient payment
On the
of what constitutes
question
been to permit
the result has
statute to
guest
apply,
v. Cunning
In Carruth
in others.
deny recovery
and
some cases
a
ham,
person
781,
1401,
held that whether
207 Kan.
P.
we
depends upon
statute
guest
is a
within
of the
“guest”
meaning
the
determining
the facts
case.
and
of the particular
circumstances
the
are
question
the
elements to be considered
among
of the
the circumstances
identity and
the
relationship
parties;
nature,
bene
the
transportation;
type
payment;
the
and amount
out
respective
growing
fits
advantages resulting
parties
the
nature,
whether the
of whatever
transportation;
payment,
constituted
benefit
motivating
a
to the
was the
tangible
operator
influence for
the
nature and
furnishing
the
transportation;
Walk,
purpose
(Bedenbender
the
v.
Sometimes a
trip.
supra.)
will
payment
take the
out of
money
passenger
operation
guest
statute and sometimes it will not.
if payment
Even
is
made, if the
is for
trip
social benefits and
pleasures,
applies
is barred from
(Rothwell
recovery.
Transmeier,
199,
206 Kan.
477 P. 2d
A person
960.)
pays
who
driver
per
$2
week to fellow
employee
transportation from his
home to work
under
prearranged agreement is
“guest”
not a
may recover for
negligence of the
(Ward
driver.
212,
Dwyer, 177 Kan.
even injuries. for personal sue to recover tlrey the driver law where no where the driver terms has application its personal transports property gratuitously an automobile riding is not vehicle property and the owner of another In that situation there no person time the occurs. at the collision would not be the owner transported by being protected are while property rights The result is applicable. This discrimination was rights protection. are denied personal Stevens, 355 Mich. 94 N. W. 2d out in Stevens pointed raised Michigan question, Court of Supreme where than sheep?” much then is better “How a man in the ultimate result where is a wide difference issue There *7 guilty or not the driver has been of reckless is raised to whether operates Where a driver ness wanton misconduct. his vehicle or hour, such fact per at an of 80 miles alone speed excessive does not hence could guest passenger constitute wantonness and a not Peters, 163 (Elliott recover for Kan. negligence. If, however, 185 he drives the same rate of 139.) speed P. at on traffic, passenger protests slick in and the his pavement, heavy then well found might such to be reckless and driving driving Ward, Kan. 187 360 P. 2d (Swinney wanton. Unfor there is distinction tunately no clear between recklessness and on and gross wantonness one hand on the other. The situations, that in comparable result has been factual one guest has been denied and another has been per to for his injuries. mitted recover analysis this our it past
From decisions seems obvious to us guest that the statute has had effect of discriminating between varying under factual circumstances. passengers Is there a rational basis these distinctions? What legitimate public is served thereby? interest after the enactment of the it
Shortly guest statute was contended that created a passage public in policy against enforcement of the previously state applicable common- liability. law We rejected rule contention Pool v. Day, 195, P. 141 40 2d 396. In Pool two young couples from Cowley decided to county attend dance at Ponca City, Oklahoma. En- route, an automobile accident in Oklahoma. occurred Oklahoma young did not have statute. girl, who was passen-
759 district court in the accident, action an brought ger injured of the negligent the estate against to recover Cowley county ordinary negligence, upon was based of action driver. The cause was It in Oklahoma. recognized liability rule of common-law liability rule that the defendant common-law argued by the and there- Oklahoma inconsistent with the Kansas was the public rule was against fore enforcement of the common-law action violation state. held that the policy of this our contravene any public law of state and did not positive our any rights public or threaten policy, injury nor offend our morals and was therefore a any way, interests our citizens in courts of this case to be the district state. proper brought Merlo, points justifi- out two supra, Brown cations been advanced both traditionally judicial precedent and academic commentaries tihe statute’s classifi- support cation scheme. (See, e. g., Harper & James, Law Torts [1956] 16.15, Lascher, p. Hard Makes Laws Bad Cases—Lots § Statute], Them. California Guest Santa Clara Lawyer [The [1969]; Joost, Automobile Guest Rule: Sound Public Policy Dinosaur, 2 Legal [1966]; Tanner, Portia L. 105 The Kansas Guest J. Act: Look, L. Let’s Take Another First, Kan. Rev. 283 [1972].) provision said to promote hospitality by insulating generous drivers from lawsuits instituted by ungrateful guests who have benefited from a free ride. This has been referred as the “hospi- tality” Second, it argument. suggested the statute serves lawsuits, eliminate possibility collusive in which a host *8 fraudulently confesses as to negligence so permit his guest pre-— sumably a friend or relative —to collect the host’s insurance company. These justifications are mentioned in our early decisions statute. interpreting Gallemore, (Stout 573; Matson, P. 2d Koster v. 30 P. 2d and Walls, Bedenbender v. supra.) We with agree Supreme Court of California Broion that neither of these justifications provides a for explanation reasonable the discriminations established by the statute and thus a neither provides rational basis to uphold against present constitutional attack. We will consider each of these justifications separately first, the — “hospitality” argument. We believe that protection of hospi- does not tality provide a sufficient or rational basis for the guest statute’s classifications. Broion points out that strands of distinct embodies two actually rationale “hospitality” the statute’s instance, envisages theory In the first reasoning. a standard of care higher providing as simply scheme classification not, such justifying who do than pay passengers who passengers general legal a reflective of purportedly rationally a distinction as instance, In the second for.” get pay that what you principle “you the host an suit guest’s against deems rationale hospitality subject legislative and hence ingratitude, inexcusable instance the rationale recognized have of this state condemnation. The courts than passengers degree paying of care higher prescribing ones; utmost care duty to use the common carrier’s nonpaying this at We do believe work. principle exemplifies guests between nonpaying rationale can be as reasonably applied automobiles. The invidiousness in private paying passengers draws that it some distinc- statute lies not in fact but rather in nonpaying passengers, tion between paying them of guests by wholly protection fact it penalizes depriving standard of has higher Furthermore care against negligent injury. they because common carriers traditionally placed upon been areas under certificates of exclusive convenience operate that it is as utilities. We do not believe reasonable necessity public driver public utility. automobile to a compare guest passenger’s furthermore the thesis that a lawsuit reject epitome his host constitutes the such against ingratitude as Walls, (Bedenbender to be This ought supra.) condemned. widespread is not because insurance argument persuasive liability any “ingratitude” notion of largely has eliminated once against suit his host and guest’s have adhered also because redress for cannot guest’s rationally deprivation promote a desire to justified by hospitality. considering the argument Court of California in Supreme Broum “hospitality” stated follows: injured “First, guest’s if the characterization of an lawsuit as an act of general ‘ingratitude’ validity, rationality completely ever had its has been development liability of almost universal eroded insurance years. coverage in recent Whereas late 1920’s 1930’s the statute’s might operation realistically relieving generous been viewed as most potentially great personal expense, today, hosts from widespread with the prevalence coverage, of insurance it is the company, insurance and not host, generous majority protection that in the of instances wins under the Thus, day nearly percent in a statute. in which carry automobile drivers *9 insurance,
liability longer sequester can no the defense that it is a language, plain there is necessary ungrateful’ guests. means thwart (p. ‘ingratitude’ suing your insurer.” simply in host’s no notion of Court is Supreme California of reasoning We that this believe overwhelming majority Kansas. especially today applicable insurance. today liability in Kansas of drivers automobile insurance make mandatory Furthermore trend is to the modem the basic This is for one coverage all owners motor vehicles. isor being has been enacted concepts legislation of no fault it is the nation Hence today. considered in state in practically every clear to us first advanced that the ‘hospitality” argument today. has no exist they under the facts of life validity further are the guest Brown that impressed by the conclusion rationally justify statute’s cannot purpose of fostering hospitality for certain automobile lowering passengers. protection types That and we refer the depth discusses the matter in much that the reader to that To conclude up, sum it all we opinion. ‘hospitality” ground does a rational justification not constitute discriminating nonpaying passen- between paying gers nor for withdrawing negligently recover for guest’s right inflicted injury.
We further hold that the “collusion does justification prevention” not provide a sufficient basis elimination for the statute’s wholesale all automobile guests’ inflicted negligently causes of action injuries. The behind the “collusion” theory argument appears ride gives driver who a free to a does so because a close his relationship guest; pre- with because sumed closeness of this driver admit relationship,'the may falsely liability so that his may collect the driver’s insurance company. To fraud, combat this risk of potential all eliminates action in causes for automobile guests. We believe that it eliminate is unreasonable to causes of action of entire an class of because some persons simply undefined portion designated class file fraudulent As stated lawsuits. Emery 45 Cal. Emery, P. 2d “Courts must de- pend upon efficiency the judicial processes to ferret out meritorious from the fraudulent cases.” In particular Brown Court of Supreme California refuted effectively the “collusion” out argument by pointing the terms under of the guest the rider can driver escape the statute’s bar and thwart the “anti-collusion” purpose, simply by colluding on the issue whether *10 By the ride. for payment any 'Compensation
the rider provided causes instituting from guests 'all automobile prohibiting broadly that class segment a small because for of action an suits, overinclusive class- creates collusive file because baby simply out the It in throwing results ification scheme. The scheme statutory once awhile. dirty gets bath water than are individuals range a burden wider upon clearly imposes the mischief at which of those tainted with the class included in all suits for barring the law aims. believe companies insurance some collusive protect guests simply lawsuits, exceeds the bounds of rationality of the law. denial of equal protection constitutes a which the guest we conclude that classifications summary, those denied and permitted statute creates between those do bear a substantial and injuries inflicted negligently for statute’s purposes protecting hospitality rational relation collusive lawsuits. We there- preventing and of of the host driver that, negligently injured guest, hold to a the Kansas fore as applied equal protection guarantees United violates We, overrule necessity, States and Kansas Constitutions. Bailey Resner, Pizel, v. and Westover v. Wright supra; Schaffer, supra; on constitutionality which statute’s other supra, upheld grounds. the case is remanded to the reversed and district judgment permit
court with instructions to with her plaintiff proceed cause of in negligence. action Whether a Kansas motorist J., should be (dissenting):
Kaul, subjected by gratuitous passengers, including to suit members of his own caused family, injuries by ordinary negligence has question sensitive been debated in the policy repeatedly many Although, halls of this state for legislative years. pointed as Kansas statute has majority opinion, out our heretofore challenges, today withstood constitutional court has relied of equal protection constitutional based tire upon principle upon n classification alleged gratuitous unreasonable as passengers Merlo, 855, California court Brown 8 Cal. 3d espoused by 212, 106 388, and judicially 506 P. Cal. abolished Rptr. the statute waiting rather than to act. legislature court has reasoned and “collusive law- “hospitality” arguments suits” have been so by changing eroded conditions— no they liability coverage insurance particularly expansion —that classifi gratuitous passenger as a reasonable basis for longer serve I would add the evils two mentioned justifications cation. To the 221, Silver, U. S. 74 L. Ed. litigation. vexatious (Silver 57, 65 50 S. Ct. A. L.R. as well have afforded
Traditionally, generally court courts con- legislative classifications of reasonableness and presumption race, color, where discrimination is not based stitutionality upon Stores religion, ancestry financial Ohio v. position. (Allied Bowers, Antieau, 358 U. S. 3 L. Ed. 2d 79 S. Ct. Vol. 1 Law, 8:81, Modern Constitutional A statutory discrimina- p. 630.) § *11 tion will not be set aside if facts any state of be reasonably justify conceived to it. U. S. 6 L. (McGowan Maryland, Ed. 2d 81 Ct. 1101.) S. legislative enactments, a number of which with- court,
stood challenges constitutional before this the use of an auto- mobile on Kansas highways recognized has been as peculiarly the subject regulation. (K. Our S. A. is in- 8-122b) corporated the regulatory provisions Automobiles And Other Motor Vehicles Act more than an nothing increment to the regulatory provisions contained therein.
On the basis the record and information presented at hand I cannot assume are no there evils to be corrected or permissible social objects to be gained the statute. Nor am I by able to agree that no state of facts could reasonably conceived that would justify the classification set out the statute.
Whether the concepts collusive lawsuits and vex- hospitality, atious litigation have been so by changing eroded conditions that they have become justifications obliterated as for the Act poses question steeped with social is much implications more ap- propriate legislative solution than judicial determination. A legislative committee has much broader access to relevant informa- tion bearing upon these matters than afforded a court bound by the limitations of a record of judicial proceedings. bill (House Bill No. 1634) repeal the statute is before pending legislature now in session.
For the reasons stated I is the legislature believe forum proper therefore, and, determination of the issue dissent. respectfully JJ., join foregoing ‘dissenting Fromme, Schroeder opinion.