*1 18,019. No.
Mabel E. Ethel Noakes M. Gaiser Gaiser. Palmer Lee
(315 183) P. [2d] August 19,
Decided 1957. Mr. K. Hudson, in error. Thomas plaintiff Mr. H. Mr. Nathan H. for defend- Creamer, Berman, ants in error. announcement was made Court. following
Mr. Justice does not Day participate. Moore, Mr. Chief Justice Mr. Holland and Mr. Justice Justice Frantz are of the opinion judgment should be reversed. Knauss,
Mr. Mr. and Mr. Jus- Justice Justice Sutton Hall are of the should be opinion judgment tice affirmed. divided,
The court being equally judgment court is affirmed operation trial law. dissenting:
Mr. Justice Holland affirmance judgment I dissent by opera- the fol- opinion, court and in my tion of law divided the court. should be the lowing opinion 19, 1956, complaint filed error, Plaintiff on April ’53, statute, C.R.S. under *2 and as owner 13-9-1, operator defendants in error against aas riding guest. of an automobile in which was plaintiff details of which are injuries, Plaintiff sustained severe that the in- relate, alleged not and to here necessary with another automo- caused a collision juries by were bile, negli- collision was the result of defendants’ which and disregard of willful wanton gence, consisting of others. rights answer, that the
Defendants, complaint their by allege failed to state a claim relief could the negligence that the accident was granted; and contributed to by plaintiff’s negli- was plaintiff, that assumed the risk of the further, plaintiff gence; events that transpired. 27, 1956,
Trial commenced on March before a jury was case, moved and at the close of defendants plaintiff’s dismissal of the and the court sustained this complaint motion and dismissed the complaint. regular pro- order of dispensed cedure was followed or was court and we are asked to reverse this of dis- judgment court took missal on the ground erroneously law, from the and held that as a matter of the case jury defendants’ conduct did not constitute con- negligence of willful and wanton sisting disregard plaintiff’s since it was for the to determine whether rights, jury limit; defendant driver exceeded the failed speed stop for an automatic traffic whether had signal; she control; her car under whether her plaintiff warned had. manner she driving; as to the in which was and finally, whether had the manner in plaintiff protested against car. which she was operating 1953, plaintiff On was in an August passenger defendant M. automobile driven Ethel Gaiser; was in the front seat of the automobile on plaintiff hand side and another riding passenger the middle between plaintiff and the driver. The three had been friends for a number and had attended of years wedding and after morning, driving by plain- tiff’s home and moments, for a decided to stopping few go on some for lunch. place From home plaintiff’s they traversed several streets, East Colfax finally reaching avenue there east, turned and at an intersection their stoplight, automobile crashed into the rear an- other car which had been they for some dis- following tance. This vehicle, evidence, shown appar- ently stopped rather at the in the traffic abruptly change light.
Plaintiff claims that defendant driver was looking the side of the street for a certain restaurant as they drove and that along, cautioned plaintiff defendant driver a time or two about fast, too careless driv- driving ing the car driving and not the direc- looking in *3 tion in which were they realiz- traveling, plaintiff, that ing the collision was about occur, told defendant driver it,” to “Watch but it was too late. Because testimony is plaintiff denied defendant it by driver, raises a jury question and was sufficient to raise the of defendant question driver’s willful and wanton disre- gard of the rights Our plaintiff. statute, C.R.S. ’53, 13-9-1, is as follows:
“No transported the owner or of a operator motor vehicle as his guest, without for such payment transportation, shall have a cause of action for damages süch against owner or operator death or injury, loss accident, case of unless such accident shall have been intentional on the such part of owner or operator or intoxication, or by negligence consisting of a willful and wanton disregard of the rights of others. The of this section provisions shall not relieve a public carrier or owner or a operator of motor vehicle while same demonstrated being prospective pur- chaser, of responsibility any injuries sustained aby public being transported or
passenger carrier such operator.” such owner statute in the above terms found inconceivable respects to the so-
makes different in some our statute “ * * * other states. Witness: called statutes of been intentional unless accident shall have ** happened operator part If what owner or then “intentional,” cases similar was here or in other if defendant driver was will- also, not accidental; was fully rights plaintiff, disregarding wantonly “negli- negligence. The use of word then it not was meaningless expression gence” that the statute is pollute intended sense of the not statute. should plaintiff plea guilty contention was Defendants’ contributory negligence is without merit. If the con- plaintiff base that failed to do tention is made protection, sup- things the evidence does not the port for her plaintiff’s Fragments testimony that contention. ways, she, in different warned defendant disclose looking not careful and about not driver about urged going, successfully and it cannot be she was where presented, plaintiff the conditions here was that under upon alighting automobile, be- bound to insist extending requirements far, besides, the that there would that is too cause plaintiff an accident. did not know pertinent that if, to make the further observation It is as negligence hereinbefore, there is no have said if we causing operation the accident or the was the accident negligence, then it removes the field of intentional, something plaintiff that did could not contribute to exist. in the evidence as whether conflict
There *4 wanton, and of driver were willful that acts defendant province beyond of the court it was the trial to so, clearly question, and it the was an issue to be determine jury under definite instructions submitted to to plain- disregard willful and wanton of constitutes what negligent, rights. acts reiterate that if the were We tiff’s and but if willful they wanton, and were not willful negligent. they were not wanton, allegations of defendants’ fail understand the
We to allege was that the accident answer: “Defendants by plaintiff.” negligence Plaintiff was of noth- charge operation and did automobile of the operation, her own ing but for its that interfered with complaint guest, protection made sufficient as a she operation the ve- about the careless defendant driver prior accident. hicle to the expressed, it is views herein
In accordance with the my opinion court to dismiss that error for the judgment plaintiff’s complaint; should be re- directions to rein- versed and the cause remanded with proceed complaint and the defense if state the presented. is to be
Mr. Justice Frantz dissenting: by operation
I would dissent from an affirmance law II, and case. would reverse the Article Sec. 6 provides: Constitution of the State of Colorado “That justice open every person, courts of shall he and a speedy remedy every injury person, afforded for property justice and character; and should (Em- delay.” sale, be administered without denial or phasis supplied.) This ais constitutional mandate to the question court. Even where a constitutional is not raised by litigants duty, statutory court has where jurisdiction responsibility affects the dispose question court, raise it. responsibility closing may eyes court not avoid its its patent legislative away to a effort to whittle what is plainly required of it the Constitution. Such divesti- authority should ture of constitutional the court without be scuttled delay; pristine it should maintain the judicial integrity vitality govern- branch contemplated founding ment as and fixed fathers. *5 78 quoted embraces the Constitution section of Republican
principle justice: form that in a of natural legal government adequate every an of man should have remedy injurious wrong him another. done to for an provision to the courts is a command This constitutional person open every person such afford to be to and to remedy injury that such him and another, to right contravenes con- shall not be denied. A statute provision court im- render the stitutional which would injunction potent constitutional act to where the provision requires manifest, is that it do act. Where invalidity ought the law with- the court to declare the of upon hesitation, out its own motion. regarded rights highly conferred of most
One by Magna is the that “we Charta individual deny any man, man, sell to either will justice to no we will Magna right.” provision of Charta finds or This counterpart of the Constitution II, its in Article Sec. 6 provisions in a and in similar constitutional this state courts of the several states number of other states. The pur- having provisions and held that its intent like have pose preserve common-law of action for is “to legislature property, and while procedure, may change remedy or form of attach perhaps precedent exercise, to its abolish conditions * * deny *, remedies cannot old substitute new entirely.” City remedy Mateson v. Astoria, 39 Ore. Houk, Pac. Stewart v. 1066; 65 127 Ore. 271 Campbell, 1236; Pac. 61 A.L.R. Landis v. 79 Mo. Rep. Ludwig Ky. Johnson, Am. v. 239; City (2d) (Tex. Lebohm v. 347; Galveston, S.W. S. (2d) Taylor Ct.), (2d) 951; Hubbell, 275 S.W. v. 188Fed. pro- words, effect of 106. In other the constitutional rights this, that frozen into our law are vision those person, recovery property or character adoption at the time of the which existed our Consti- tution. application has
This constitutional government; it legislative judicial branches judiciary legislature and the defines an area in which rights explicitly, ex- abrogate, implicitly may not Supra; adoption. Houk, the time its Stewart istent at 84, 277 Smith, 134 Nebr. First Trust Co. Lincoln *6 N.W. 762. provided that: holding guest In a statute invalid operator person transported or owner “No the payment such guest, for a motor vehicle as his without damages transportation, action for a shall have cause of any injuries received; against operator such owner or for any accident, unless case of death, or loss sustained in act intentional an shall have resulted from such accident sup- (Emphasis operator.” part or the of said owner plied.) constitutional in contravention a
Because the court said “it was ours, identical the almost purpose [the framers of instrument manifest of the perpetuate preserve common- Constitution] to negligent injured by right act an- of a citizen law injury.” Ludwig for other to sue to recover Ky. supra; Foster, 49 Galder v. Johnson, v. Van (2d) cases court considered other 352. In these S.W. provisions pertinent as well. constitutional supra, Houk, v. the court was In the case of Stewart validity of the statute called to determine against that state which forbade action operator or of a vehicle. What the court there the owner pertinence quote has instant case. enunciated We opinion: excerpts from the provides: Oregon § Constitution,
“Article ‘. . . every remedy by And man shall have due course of law injury person, property, reputa- done him in his or tion.’ purpose legis- save
“The jural rights abolishment those which had lative become prior established to the enactment of our well tion. Such Constitu- frequent pronouncement has been the of this * * * court. Bean, of Mr. Chief Justice language Astoria, Mattson v. makes clear the intent supra, very as foregoing constitutional we provision; quote follows: ‘The constitutional provision guaranteeing every person due course of law for remedy by done him in or is found in the constitu- person property states, tions of many means, as said - Court of “that for as Supreme Missouri, are wrongs recognized law of the land the courts shall be and afford open Mo. remedy” (Landis Campbell, 79 433, 439, Am. or, Rep. 239); interpreted by Su- “that preme Wisconsin, Court of shall be enacted laws a certain for all giving injuries or remedy wrongs” (Flanders Merrimack, 48 Wis. N.W. 741). It intended to preserve the common-law action and while the property, legislature may change the form of remedy pro- attach conditions cedure, precedent exercise, to its abolish old and substitute new remedies perhaps (Mc- *7 Williams, 10 S.D. 43 L.R.A. 72; Clain 73 N.W. Buffalo, 102 N.Y. 6 N.E. Reining 792), cannot ’ * * * a remedy entirely. deny “It is clear that the of the act us purpose before was to a deprive of redress in for an injury neg- inflicted him ligently upon his host if he was being without transported The mere charge. fact that the two intend that legal their should rights be such .did situation; could not alter likewise the act fixes the as legal rights, above their regardless of the capacity to contract for parties Thus, themselves. instance, for a minor below the of discretion is age of re- deprived dress for an inflicted him injury through negli- host; then also the host gence freed from lia- his even act bility, though negligent have in- may been duced the excessive use of an intoxicant or other factor. similar of the act is thus clear;
“The purpose
likewise the con-
stitutional
And,
needs no further elucidation.
clearly expressed purpose
from the
latter,
it must
prior
that,
follow
if
to the enactment of the Constitution
transported
charge guest,
a host, who
without
owed to
duty
recog-
the latter a
care,
to exercise
and if the law
duty,
injury,
nized that a breach of that
with a resultant
jural right
afforded
action,
a cause of
preserved against legislative abolishment.
Constitution
duty
guest’s
“That the host
owed
exercise
safety
disputed by
due care is not
defendant,
and is
well established
the authorities. Shearm. & Redf.
Neg.
§ 653d;
6th ed.
Johnson,
Peters v.
Or.
198;
Pac. 459;
Schultz,
Rook v.
“The thus to withhold duty previously cance from breach of was re- garded purpose as a cause of action. But the the con- safeguard stitutional was to those ancient rights, preserve causes action enforceable them breach which resulted in to another. The purposes being two prevail.” in conflict, the Constitution must
(Emphasis supplied.) equal language Of force is the in the case of Eastman County, v. Clackamas 32 Fed. in which the court said:
“Section 10 of article of the constitution of the state provides: justice ‘no court shall be secret, but shall be openly purchase, administered completely without every delay; and remedy by and without man shall have person, the course law him prop- done reputation.’ my erty, judgment, In the latter clause important bearing has an this section on this case. To *8 begin may it remedy guar- with, admitted that the is not anteed intended for the redress injury indefinite, or novel, remote that was not pale regarded legal as within the then redress. But law, as it then cog- whatever stood, took man shall for, every nizance of and furnished remedy course of law. continue have a for due remedy to it was adopted, constitution was formed When this an land, comparatively from and had been the law action dam- that a should have an early day, act for an its ages against county then known and accustomed remedy omission. If this in the face of this constitutional pro- taken away can be other not? Can in some may legislature, what vision, take man’s away of novel opinion, every remedy spasm assault and or the slander, battery, recovery and, cases, why it do so in such it if cannot can in debt? this?” is the of Mr. language Justice Butler import
Of similar case of Denver opinion Tay- concurring 594, in which he com- 89, 292 Pac. lor, pointedly 88 Colo. mented: (art. provides, of Colorado §6)
“The Constitution shall be open every person, courts of justicé ‘That afforded' for remedy every injury person, a speedy * * * ,’ character The Mis- Constitution of property has substantially souri same provision, and its stat- notice is ute to the concerning similar in the charter. In Randolph Denver Springfield, 302 Mo. held that a failure S.W. the notice give time does not statutory within relieve a municipality to one liability who, by reason of his physical or mental unable to disability, give notice within the It said that time. was to so construe the specified statute about result would be bring unthinkable, espe- where was the result ‘the cially inability negli- injured him,’ which and that such con- gence city struction would the statute into conflict bring with court also ‘In bar, said: the case at Constitution. had a action at common law right as soon plaintiff act injured by city. as she was No Legislature or encumbered her clogged would he valid right such common-law con- impossible to enforce
83 require give she notice when such as to her to ditions, doing, incapable mentally physically of so was performance, impossible her without of other conditions fault.’ adopt to should decline rule, strict which we
“To suggestion offering equivalent to to do, would be negligent any municipalities: you occasion, see are on If gross sufficiently your negligence insure it that disability physical complete the vic- and mental necessity you by doing so, will avoid tim; for pay you required damages, paying would possession his faculties.” left in victim were if the supplied.) (Emphasis “clog merely this state does not statute of right; common-law an enforceable
or encumber” attempts wholly right. deny such liability provision exempting city charter A any street, account of the condition exonerating any city when but not officer neglect, gross negli- accident was gence his willful or willful misconduct was struck down Oregon City, 402, in 53 Ore. court 100 Pac. Batdorff 287, Ann. Cas. as 937, 18 violative of the same provision. constitutional varying invalidity circumstances
Under
has been
pro-
courts
decreed
other
where this constitutional
exempting
has been invoked. An act
vision
trade unions
employers’ associations
and members and officers
liability
for tortious
thereof from
them was invalidated
acts committed
Opinion
Justices,
in In re
337;
N.E.
a statute which limited the
618,
211 Mass.
98
recovery
in cases of
to actual
libel
a fair retraction
libelous statement was
where
to be violative of
made was held
constitutional
Krehbiel,
68 Kan.
75 Pac.
in Hanson
Am.St.Rep.
Park v. Detroit
422;
1041, 64 L.R.A.
Mich.
Co.,
40 N.W.
1 L.R.A.
Free Press
provided
Am.St.Rep.
a statute which
in
544;
slander,
appear
if it shall
for libel and
actions
fact,
mistake of
through
faith
good
publication
that the statements
believing
ground
with reasonable
and within
true,
on demand
publisher
were
retraction
complete
a full and
reasonable time published
pub
which the original
as that
in a manner
public
*10
be
malice shall
made,
of
presumption
lication was
that
it
is
rebutted,
meaning
even
construed
when
his rights
to stand on
maligned
with the
optional
person
demanding
a
law,
part by
the old
or to waive
under
law, was
under
the amended
a retraction
and accepting
in Byers
constitutional
provision
held to offend the
917,
N.E.
38
Co., 84 Oh. St.
95
Printing
Meridian
bringing
a
913;
prohibiting
statute
L.R.A. N.S.
conversa
affections,
criminal
for alienation
actions
was declared to
contract
tion,
marry
or breach of
this con
of the rights guaranteed by
an infringement
Ill.
68
in Heck v.
394
Schupp,
stitutional
cities
232;
authorizing
167 A.L.R.
a statute
N.E. (2d)
for
in cer
damages
themselves from
exempt
liability
acted,
activities, under which the
of Amarillo
City
tain
a similar section of the Constitu
was held violative of
Tutor,
(Tex.
697
tion in
Amarillo v.
S.W.
City of
city
a
exempting
charter
App.);
city
Com.
defective streets was
for
liability
City
Lebohm v.
same reason declared invalid in
a
Galveston,
rule of the
supra;
police department
of
a
claim
a
officer from
a
police
asserting
city forbidding
third
obtaining permission
without
first
against
party
held
in conflict
from the
so to do was
to be
department
this constitutional
in
guaranty
Barry,
with
State
Oh. St.
N.E.
The statute' of this in guest C.R.S. effect that no provides person transported the owner or of motor vehicle operator as his guest, without for such payment transportation, shall have a cause of against action for such owner or operator by the injury, accident, caused or in case of death loss operator. simple negligence The statute or of such owner operator an of vehicle that owner in effect declares duty of an and caution to exercise care has no guest; respect ordinarily prudent such it in proposition that an owner essence sets forth may negligently operator and cause vehicle drive his liability. damage These without of the statute. are the stark realities overwhelming weight authority sustains legislation theory type finds sanction on the police proper power. A.L.R. See 111 exercise of the legis- compelling sanction of such idea for the 1011. The guests guilty of have been lation the notion advancing claims. In faith in collusion, fraud and bad frequeptly presumatively host words, other pressing mulct claims in order to in the connive Admittedly, instances have insurance carrier. occur, should be done occurred and will but what great claims based bona fide number of *11 presumption negligence? dishonorable conduct Such pre- contrary part and is to the of host on dealing sumption prevailing generally fair People honesty. Co., Texas Colo. common Pac. 896. gov- the fundamental fabric of We render threadbare legislation sanction ernment, Constitution, if we our langauge our Constitution as the statute. The may significant; seize if but seek we and we would far-reaching meaning, by profoundest and most looking turning word, at it over each familiar designate. light primitive was used to idea it vigor restoring meaning go quest would far Such vitality document. to this fundamental the blow at should fend directed their consti- Court self-preservation authority; requires instinctive tutional uphold, duty respect for, and the Constitution this; make action to thwart curtailment of constitu- judicial imposed power tionally mandatory. case,
In it should be reversed for view of my a trial of simple negligence. ground 18,296.
No. County General American Industries, Inc. Court et County, Creek al. Clear (316 565) P. [2d] August 26, Rehearing September 16, Decided 1957. denied 1957.