Thompson v. Hagan

J. Chad Norma F. THOMPSON Plaintiffs, Thompson, HAGAN, Judge of the District

Alfred C. District Court the Fourth Judicial County Idaho, For the the State In and Ada, Defendant.

No. 11413. of Idaho.

June Thompson,

Chad driving was an automo bile, Harvey Adams, passenger, was injured when vehicle left the road. Adams an petition filed action against the ers alleging that guest he was not a pas senger. petitioners filed for motion summary judgment supported by affidavits that alleged Adams passenger therefore action was barred Idaho Hagan statute.2 Judge denied the motion for summary judgment on the ground statute was unconstitutional impliedly or had been re pealed by the compara enactment tive negligence statutes. petitioners petition filed a with this requesting a writ mandate direct-

ing respondent, Judge Hagan, apply grant their statute mo- judgment. tion for summary This Court issued an or- alternative writ of mandate dering Judge Hagan why cause to show denying summary order for motion judgment vacated, why should not be granting summary order the motion for judgment parties should not Both issue. presented argument have briefs and oral constitutionality statute. provides,

The Idaho “Liability guest. motor owner Elam, Burke, Jeppe- Robert Koontz of —No J. oper- person transported by owner or sen, Boyd, Boise, plaintiffs. Evans & for as his ator motor of a vehicle Clemons, Humphrey Howard D. transportation payment without for such Cosho, Samuelsen, Boise, Humphrey & damages against a cause for shall have defendant. operator injuries, such or owner accident, loss, unless in death or case of McQUADE, Justice. intentional shall been accident original proceeding seeking a This is an opera- or part on the of the said owner application require writ of mandate to gross tor his intoxication or caused pro- in a the motor vehicles negligence.” ceeding accident based an automobile 20, 1972, respondent contends that Owy- occurred on October guar- petitioner,1 County, hee violates Idaho. The F. (District “respondent” special proceedings Thompsons) parties prop 1. The erly Judge Hagan). referred to as “Plaintiff” and “Defend However, in order ant.” 7-101. § I.O. confusing parties I.O. 49-1401. § avoid the instant with those litigants below, opinion the case 3. Id. “petitioners” (the are called this action persons ent treatment accorded to the Idaho4 and States5 antee of United placed by a statute into classes different because it denies automo- Constitutions on the wholly basis criteria unrelated guests injured in an accident cause bile to the of that A clas- objective in an acci- statute. action driver-host reasonable, not arbi- sification ‘must ordinary negligence, based on dent trary, ground rest including and must some permits persons guests all other substan- automobiles, having of difference a fair and paying passengers, in other object legisla- tial recover relation to of the pedestrians to other drivers tion, persons similarly that all injuries. It is so circum- negligently for caused their arbitrarily Royster stanced shall be treated alike.’ argued that 412, 415, Virginia, Guano guests negligent driver Co. v. 253 U.S. singles out of 10 560, 40 L.Ed. (1920).” therefore denies S.Ct. 64 special treatment and 989 all accorded to to them the same treatment approach requires The restrained review in vio- persons in accidents other involved the statutory be classification reasona equal protection guarantees of lation of bly purpose statute.11 related to the of the law. purposes opinion proper For the this standard is the of review restrained review statutory To determine whether question presented pro test.12 The scheme violates classification ceeding denial of an auto whether Su protection guarantee, the United States negligence guest’s mobile of action cause tier test.6 preme a two followed against his bears a rational relation host If a fundamental involves the classification ship to ad objectives sought to be vote,7 or to if right right as the such vanced by the statute. suspect classifica classification involves race,8 been held that tion such as it has arguments Two have been advanced heavy justify bears a burden state justification statute’s classifi- analysis The distinctions. classification First, cation scheme.13 it is said that suspect classifi rights for fundamental promotes hospitality insu- scrutiny test. cations is called strict lating by ungrateful drivers from lawsuits as all areas the law social other Second, guests. it is suggested legislation,9 standard a restrained welfare guest statute eliminates lawsuits collusive applied. In the recent case of review is neg- fraudulently which a host confesses this restrained review Reed v. Reed ligence his to enable to recover from as, articulated company. his petitioners insurance The set forth justifications the above of that Equal Clause “The Protection however, does, deny add statute and a third rationale amendment power legislate that differ- at- legislative that the statute is a I, Commission, art. 2 and 13. 4. §§ Idaho Const. 11. Idaho State Evans v. Tax ; 54, (1972) Nelson 95 1054 1; XIV, § 5. Const. amend. United States Marshall, 726, P.2d 47 v. 497 Law-Equal Developments Pro- 6. in the 653, See: (1972) Cantrell, ; 496 State v. 94 (1969). tection, 1065 82 Harv.L.Rev. (1972). P.2d 276 Virginia Harper bring 7. Board of Elec State right argued 12. It can be 1079, tions, 16 L.Ed. injuries negligently 383 U.S. 86 S.Ct. an inflicted action for (1966). right I, 2d 169 art. 18 § under fundamental Constitution, but we need Virginia, Loving 388 8. v. Commonwealth opinion. in this reach that issue 1010 L.Ed.2d S.Ct. 18 U.S. (1967). Prosser, Law at § 13. W. of Torts Harper (4th 1971) ; ed. 2 F. 186-187 Dandridge Williams, U.S. James, 16.15, at 961 F. § The Law Torts (1970). 25 L.Ed.2d 491 S.Ct. Reed, 75-76, S.Ct. Reed U.S. 251, 254, 30 L.Ed.2d 225 tempt bring pari- —after which the driver and his insur ty with licensees on real property. Each company statute, ance refuge take in the justifications of the three must exam- step picture, out of the leave ined separately to if determine the denial guest to bear his own loss. If this is guest’s against action his good policy, social appears it at least un relationship host bears rational to the der Prosser, a novel front.’ Torts 187 objectives promotion hospitality, pre- (4th 1971).” ed. parity vention of collusion and between li- spector of ungrateful guest censees guests. and automobile bringing a against generous lawsuit host has analogy in the beneficiary of a explanation hospitality ra- charity bringing a lawsuit the char- tionale is that hosts should not burdened ity. statute, Similar to the the com- by ungrateful guests lawsuits who do developed mon law the theory of charitable transportation. The ex- pay not for their immunity protect negli- charities from planation may validity in have had gence actions immunity ap- and the enacted, guest when was first the statute plied by the Idaho courts. In of the case today, but of lia- widespread incidence Bell Presbytery of Boise16 the charita- destroyed bility the basis for insurance immunity ble rejected in doctrine was total. argument.14 liability Because of insur- that, ance, It was held to result in the appears the statute not protection companies, of insurance injury painful, “Personal nois less disa- generous negligent- hosts, by from lawsuits bling, costly or damage-producing simply ly The fact that insurance injured guests. negligent by harm is inflicted a because beneficiary of the companies are the real charitable a institution rather than non- guest is made clear statute’s charitable As the author one one. of guest statute justification the second of opinion stated: is which prevention of of collusive lawsuits right, ‘It has not been is not now guest cannot discussed The statute below. right, right for nor could it ever be pro- hospitality by promote be reasoned to any forgive any person the law to or by guests. tecting hosts from lawsuits persons wronging of association any person.’ other [Mullikin is di- argued is Jew- Louisville, Ky.] Hospital ish Ass’n of who reim- against the hitch-hiker rected at infra.” 348S.W.2d [930] a lawsuit. generous burses host with his out, However, pointed it has been deprives Similarly, guest statute auto- neg- of mobile of a cause action for he had disclosed “Dean Prosser host, ligence their but allows tort against had but a hitch-hiker case once found by paying passengers, guests actions to find had been ‘unable mislaid it and vehicles, of other vehicles other drivers having present writer another.’ pedestrians. in Torts sheets the advance monitored sin- a found generation has never for a conclusion, does typical ‘The gle case. hitch-hiker of sharing promote hospitality or offers who act case is that of the driver no there transportation and therefore invites the denial the office or between relationship his friend a lift to reasonable of action negligence cause guest’s dinner, him of negligently drives him out to hospitality. promotion purpose skull collision, his and fractures Lawyers Trial Association 15. The 14.Only is federal estimate available statistic March, Newsletter, 56-57, 1973. America, at motorists of Idaho that 75% 79% Dept, liability of Trans- U. S. insurance. 374, 421 P.2d 745 16. portation, In- Accident Behavior & Driver supra, Boise, note Presbytery Liability, Implications Bell for Tort volvement: at at pp. 201-205 dangerous him ing to unknown hazards or justification The second duty The landowner’s that it collusive actions instrumentalities.18 prevents statute is warning companies. towards licensees centers around against insurance at law him host’s dangers, since but automobile theory is that justification behind friends, duty looks to activities of the host likely to be a host and controlling automobile. that the ac- fraudulently state the host will negligence so that was caused his cident There are also factual distinctions be- in- may recover from host’s host-guest tween situation prevent risk fraudulent To surer. and a landowner-licensee situation. Once collusion, eliminates a vehicle, has no inside moving guests. action for all negligence cause of negligence, means escaping host’s If, will suggests, host as the rationale but a can leave landowner’s licensee fraudulently state that he was agree to property upon neglient hazard- notice preventing him nothing there negligent, activity. is in ous automobile host stating grossly negligent from he was full the vehicle unless the acci- control of may that the or intoxicated order defect, dent caused mechanical from the insurer. recover present landowner need not be when denying all actions guests’ exposed danger, and it licensee By driver, guest statute is impossible their him to control all areas of sweep all the inclusive its and bars his property. over judicial system several actions. The similarity There the is little between discovery of prevention means for host-guest situation and the landowner-li- perjury, fraud which includes cross-exami- guest censee situation therefore the discovery oath and various nation under place guest parity statute the does not on a that There no reason to believe is devices. with a licensee. preven- they for the ineffective would be by guest against a of collusion in suits tion analysis From the above it is con There is no company. a host’s insurance guest cluded that the statute’s the denial of guest the relationship between reasonable guest’s negligence against cause of action prevent purpose its collusion. statute and his host bear a does not rational relation ship objectives guest statute the guest statute third rationale of the The promotion hospitality, prevention of of of petitioners is that it is a by the advanced collusion between parity licensees bringing duty the legislative means of guests. By denying automobile automobile his host to by the automobile owed against a of negligence cause action by a land- parity duty owed with the host, allowing negligence but actions their third rationale to a The owner licensee. passengers, by paying host the because there purpose not a statement automobiles, guests in of oth other drivers need duties of automo- apparent no for the pedestrians, er automobiles and the same. the bile hosts and landowners impermissible statute classifica draws stating purpose the By that the equal tion and is violation of the scheme parity bring into the duties statute is to guarantees of the the laws landowners, third the hosts and automobile Constitutions. and United States that erroneously the rationale assumes petitioners contend that same duties. Under situations the involve guest statute unconstitu- Court to hold the host has guest statute automobile equal protection would tional as a denial of duty negative towards of cases contrary great number through negli- gross causing an accident constitutionality of upheld that have The landowner’s gence or intoxication. argue case They guest statutes. expos- is to avoid towards licensee duty Davis, 377 P.2d 950 18. Gowen control this should of Silver v. Silver19 should the Brown case be followed and the that case the United declared Court’s decision. In unconstitutional. Supreme Court held that a Connect- argument presented The final icut did automobile not vio- petitioners support stat equal protection guarantee. late the re severely ute is that this Court should must be that the Silver case remembered guest’s strict its review statute’s prior in 1929 to the decided which was scheme and it classification declare consti of widespread liability advent Although equal protection tutional. insurance. The case not consider the did guarantee requires this Court to determine justifications three statute to if a rational connection there is between if rational connec- determine there was a objectives statute’s and the means statute’s objectives tion between argued achieving objectives, it is accomplish objectives and the means to cursory goes beyond that if this Court provided in the The Silver case statutes. objectives examination of the statute’s it appears to that all approach have taken the legislature’s ef usurping function. regulations of automobiles are constitution- fect, petitioners argue that if a statute examining regulations al without de- passed by legislature, it cannot be a analysis, Because of lack tail. protection. accept denial of It is an persuasive case is not in our inter- Silver statutory ed construction that con rule of pretation of the Idaho Constitution. avoided, issues stitutional should be point squarely presented with petitioners stat when this Court out issue, upheld by proceeding, utes have been the Illi a constitutional as in this recently Supreme nois in the and Utah cases must rule the issue. The Courts Delaney Cannon should have wide discretion in the enact Badame20 and statutory promote cases Not all recent ment of schemes to Oviatt.21 duty welfare, general but this been in Court has accord. California protect people’s rights is in vio as enumerated Court held guarantee in equal protection lation of the in the Idaho and United States Constitu 22 legislative tions We the case of which was from encroachment. Brown v. Merlo in conclude that statute violates Supreme followed the Kansas Court guarantee equal protection Henry the case of and the Bauder.23 v. and there

North in case and United States Constitutions Supreme Dakota Court fore must hold it unconstitutional. we Brown case Hassett.24 The v. Johnson represents analysis exhaustive ma this action Since involves a equal pro guest statute in relation to the negli jor liability in a host’s change in a relied guarantee tection and was accident, caused automobile gently After proceeding. the district in this court past, question pend of its applicability authorities, we are reviewing the above ing future cases must be addressed. in decision persuaded Walker,25 the that the California case of Linkletter ; (1973) 221 19. L.Ed. 74 280 U.S. 50 S.Ct. 23 Drake L.Rev. 216 50 N.D.L.Rev. (1929). 5 139 U.W.L.A.L.Rev. 53 (Kan.Sup.Ct.1974). 23. P.2d 362 518 20. 49 Ill.2d N.E.2d 353 274 (N.D.Sup.Ct., 24. March N.W.2d 771 filed 217 Supreme Court, (Utah 21. 520 P.2d 883 29, 1974). 26, 1974). March Walker, 85 Linkletter 381 U.S. ; also: see (1973) ; Cal.Rptr. 388, (1965) 212 14 L.Ed.2d 106 506 S.Ct. 601 see: Past, Comment, State, Review Preview Sims Olson, Viability (1972) ; of Automobile of the Future: Dawson v. (1973) ; (1972) ; State, Statutes, Guest Cinn.L.Rev. P.2d 97 Smith v. this The third factor is made an action. the effect ex- United justice. on the administration of This retroactivity court fac- analysis of haustive tor takes account cases are no the number of held that there decisions. reopened ret- if requirements concerning would be the decision that constitutional ap- is unconstitutional is of discretion roactivity, and it is a matter retroactively. ap- plied courts. Three different state retroactivity proaches can be identified. factors, weighing After it three rule is the traditional approach The first prospective is concluded that modified concept from the which derived in this applied rule should be action. law, only pronounce but courts do not new holding decision statute unconsti ap- discover the true law. Under applies tutional pend to this action and all decisions, only proach no there are new but decision, ing at the actions date of this law which makes clarifications of true applies arising to all actions in the fu applicable past both fu- decision ture. approach is ture The second cases. Costs to defendant. prospective rule. Under this rule a deci- actions, only sion is effective in future BAKES, JJ., DONALDSON con- does case not affect the law the rule cur. in which the new rule is announced. approach The third is the modified McFADDEN, (specially concur- Justice prospective rule is a combina- which ring). prospective tion of the traditional I concur in majority opinion which prospective rules. Under modified quashes the alternative writ of mandate rule, applies prospectively the new decision previously only grounds issued parties bringing and to the the action re- opinion, stated in the majority also sulting decision; or, par- in the new to the my opinion ground on the additional ties bringing the action and all similar superced- has been pending actions. statutory ed enactment of com- determining parative To the courts in aid doctrine Idaho. apply, which rule to Linkletter v. Walker “Repeals by implication favored; are not following set forth the factors to con but if inconsistency is found to exist be- First, purpose of the new de sidered. tween the earlier and the later enact- analyzed cision must be connection with ments, such that the could not question retroactivity. purpose have intended the two statutes to be con- holding of the automobile statute un temporaneously operative, it will im- guests constitutional is to from prevent plied that legislature the re- intended to protection being denied of law. peal the earlier the later enactment.” purpose by applying would served The (Citations Davidson, omitted). State v. past the case to both and actions. future 553, 559, 78 211, Idaho 309 215 P.2d prior factor is on the The second reliance (1957) possibility rule of The exists that law. also, Pearce, 687, See Idaho v. 91 Jordan may hosts have offered rides to Glauner, Rydalch (1967); 419 relying guest stat on the of the 108, 83 Idaho 357 P.2d 1094 (1960); Gol- negligence Additionally, ute from actions. Neill, conda Lead Mines companies may insurance have relied 350 221 (1960). The Idaho setting in their rates. statute statute was first enacted in and it strong The factor of in very was most recently reliance in amended (1970) ; Ostrager, (Fall 1973) ; Comments, Retro- 473 P.2d 937 289 Wake Forest activity Prospectivity (1971) ; (1933) ; L.Rev. 42 Yale L.J. 779 Interpretations, 19 N.Y.L.F. Constitutional 10 A.L.R.3d 1371. recover, complete statutes became was a bar to no matter comparative negligence degree negligence. contributory in law Comparative negligence expands right comparative negligence provi- Idaho’s recovery by barring plaintiff to on sion consists of the two statutes: following grounds contributory negligence only negli- ^-Contributory 6-801 “[I.C. § negligence. when it exceeds the defendant’s gence recovery shall in an action not bar The guest statute bars an automobile person legal representative or by any guest’s negligence action and inconsist- negligence damages to recover or comparative negligence by ent limit- with gross resulting in negligence death or in ing recovery. person property, to or if such injury inconsistency between the negligence great negli- was not as as the comparative negligence statute is also gence gross negligence person or apparent plaintiff- in involving cases recovery sought, whom guest’s gross negligence against claim any damages allowed shall be diminished defendant-driver who counterclaims negli- the amount of proportion plaintiff-guest contributorily negli- was gence person recover- attributable gent. First, jury must find that ing.” guilty gross defendant-driver negli- gence recovery. Secondly, allow may, 6-802 court “[I.C. :]-The § jury comparing gross- is faced with requested shall, by any party when direct negligence the defendant-driver with the jury separate special to find verdicts contributory negligence plaintiff- of the determining damages the amount guest, degrees and is required assign the percentage negligence attributable Comparing gross negligence fault to each. party; each and the court shall then ordinary negligence is similar to com- damages reduce the amount of such paring apples making impossi- oranges, proportion to negligence the amount of ble a meaningful allocation of fault attributable to person recovering.” jury. As discussed in majority opinion, my opinion statute bars enacting inconsistent with the statutes guest’s negligence cause of action but al- comparative negligence in Idaho. doctrine lows actions gross negligence based The Idaho statute was first enacted appears legisla- intoxication. comparative negligence and the ture contemplated gross that at least the statutes were enacted 1971. When negligence portion dealing legislature acts of the with would still operate passage after subject-matter necessarily same incon comparative negligence provision because sistent, prevails the latter over enactment gross I.C. 6-801 makes two references to § Gallet, 35 Idaho the earlier. Herrick v. negligence. question in this action ; Nampa-Merid (1922) Little v. P. not whether the intended to re- Dist., Irrig. ian 350 P.2d 740 peal enactment of the Pearce, Jordan comparative statute, but wheth- 429 P.2d 419 (1967). guest er the comparative negli- statute and n gence are sufficiently inconsistent that BAKES, JJ., and con- DONALDSON must be guest held has that the cur. superceded by been compara- enactment of negligence. tive SHEPARD, (dissenting). Chief Justice comparative Before majority I consider the action of the adopted in Idaho it was opinion today held that contribu- intru- to be an unwarranted tory negligence part plaintiff government on the by judicial sion the branch of

27 my knowledge has not to tradi- been modified policy into the area of determination any respect tionally historically the substantial that our automobile reserved for guest statute legislative government. is not to the United offensive branch States Constitution. emphat- that I I note at the outset would is ically disagree Such of course does not the policy the which answer with However, question guest I as to whether not the enunciated our state. statute is offensive resign to our state constitu myself must to the fact that I am not, Although judi- tion. not mentioned in ma any nor is other member opinion, jority although government, cial branch the decisions authorized persuasive, empowered merely courts are other policy to overturn decisions country courts across legislative govern- made have almost branch of court, Magic unanimously upheld automobile stat ment. Both this v. Keller Co., 276, 441 725 utes Water constitutional attacks. See Guerrette, Vogts 527, (1968), Supreme 142 351 P.2d the United Colo. Court, (1960); Delaney Badame, Maryland, 851 Ill.2d McGowan v. 366 49 U.S. 274 (1961), 81 S.Ct. 6 393 N.E.2d L.Ed.2d Westover Schaffer, have it is stated that not Kan. necessary (1970), court Annot. agree legislative enact- A.L.R. 1011 While, defendants, as argued ment it is appropriate public pol- is sound and icy jurisdiction country true that no judicial inquiry but rather across the is more has enacted an circumscribed. automobile statute for In matter of our statute, thirty-five years, what ne competing arguments majority there are us, glected true, supporting position. tell each which is also our having government scheme states automobile delegated generally unfavorably primary responsibility statutes have been deter- disposed public repeal. mining policy toward The Future and in See the case of Statute, Automobile Guest Tem statute it has unequivocally chosen ple Quarterly, public Law direction policy pro- should ceed. policy reviewed that on sever- majority only herein cites the courts al occasions and decided it should not of California and as having Colorado stat- I modified. am the firm belief that we ed that automobile statutes un- authority our to substitute equal constitutional as a denial of protec- “wisdom” for that of Legisla- illogic tion. The of the majority decision ture. obviously herein has been lifted from the decisions of equal Insofar as California protection and Kansas. Those clause decisions, herein, parroted majority the United States Constitution con- up men, set cerned, two straw one collusive United States lawsuit, secondly Silver, advancement of Silver v. U.S. S.Ct. hospitality. opinions Then all three (1929), 74 L.Ed. 221 effec- rejected tively destroy argument proffered straw men and conclude therein and therefore that upheld automobile constitutionality of an automo- patently so unrelated to attainment bile majority opinion statute. The objective a valid stated that it distinguishes solely violates Silver on the basis that either the federal or re- state liability constitution insurance more wide- lating equal protection. ly today carried than at the time of Silver. logic I escapes that distinction me. had always I believed that Idaho the Silver, would hold su- that since Silver v. only proper inquiry legislative in a case

pra, is the latest statement on matter classification was it whether was reasona- by the United States Court and bly proper legislative purpose related ato conversely

or so Although perhaps whether it was unrelated peripheral to the deci- case, arbitrary. as See sion in point to unreasonable this I would out that Co., Magic Keller v. Water there are distinctions between the Idaho Big (1968); P.2d 725 Wood Canal and the California statutes involved and Chapman, 263 P. Co. v. Idaho between Idaho and California courts’ 0the Child, (1927); interpretations respective guest Newland stat- Belcher, 79 Roos v. 254 P.2d 1066 utes. I suggest would also there that are 210 (1958). general substantial differences between law of that California and of Idaho. Cali- suggest the woods and I would that fornia rejected validity has heretofore relatively arbitrary books are full of law of a distinction invitees and licen- between legisla- by courts or decisions made either guests upon sees as I property. real would In all them different classifica- tures. note in that contrast the recent thereto equal treat- persons are denied tions of Robinson, Mooney case of 93 Ida- a few Examples are ment. endless (1970) rejected ho 471 P.2d 63 enact statutes may Legislatures suffice. In declined to follow the California view. that limitation. The rationale therefor spite protestations majority of the of the liti- subjected to should not be defendants opinion, that suggest I would to consist- gation The reasons based stale claims. perhaps (albeit ent it is the vice little reasoning therefor obvious. Under anticipate should the abolition minds) we opinion in this case majority and in- distinction between licensees ra- review court should be enabled to in upon property vitees real Idaho. legislative involv- tionality of that decision in a length be utilized ing the of time to opinion Mr. I turn now to the Justice example peri- If limitation statute. effect McFadden to the years, would od of the limitation by superseded has been a protection to bar a not be denial comparative negligence enactment of a attempted file claim one litigant who to Idaho. statutory day expiration of after pointed out I think it should be first majority reasoning of the time ? Under the respondent enough least was at candid case, present rationale argument that his with the to admit court hardly can barring stale claims adopted by any other court of had not been one applied to logical when be said to be any jurisdiction up to United suit, applied person and when permitting my knowledge court this date. No later bar another filed hours ruled as a matter of law that both com- suit. parative negligence statute and a drawn have This and other courts court by Compar- cannot exist side side. licensees, business distinctions between statutes and statutes ative have property invitees real social states, in at least three Ar- together exist proper- imposed upon owners of those kansas, Dakota. Two Nebraska and South degrees liabil- varying and different ties states, Georgia, Massachusetts and ity. impose taxes on Legislatures broad dimin- established that judicial decision persons exempt such from classes a driver ished standard of care owed widows, aged persons as taxes certain non-paying both of those people, certainly etc. discrimina- Such comparative neg- states adopted have also law. tory unequal treatment ligence legislation. use- Whether such discrimination serves always had believed that the intention I policy primarily legis- social for the ful alleged enacting judgment policy my these are lature. controlling. This court repealing act was not need judiciary thickets which years has for held the well established its and should set foot. principle that if a new law not ex does 523 P.2d 1375 pressly repeal law, prior repeal by im COMMERCE, corporation, BANK OF plication is not favored. Golconda Lead Plaintiff-Respondent, Neill, Mines v. 82 Idaho 350 P.2d 221 State, Storseth v. 72 Idaho COMPANY, INTERMOUNTAIN GAS a cor- poration, Defendant-Appellant. P.2d 1004 It has also been said that presumption against overcome the No. 11495.

implied repeal clearly acts two must be so Supreme Court of Idaho. repugnant, so irreconcilable as to their sub June jects purposes, legislature Rehearing July Denied could not have intended that the acts operation. have concurrent Da State v.

vidson, 78 Idaho 309 P.2d 211 (1957); Boyle,

State ex rel Good v.

186 P.2d 859

I point comparative would out that

negligence legislation S.L. Ch. 186

(codified as I.C. 6-801 et seq.) contains §

nothing purports general be a re-

pealer prior legislation. inconsistent

Even the district judge in his memorandum

opinion in the case herein noted “that

was the intent of the legislature impliedly repeal ob-

served reading the wording com-

parative negligence statute wherein both phrase the word and ‘gross * *

negligence’ While, are used as

pointed special out in concurring opin-

ion, the trial of law suits with the exis-

tence of both the automobile comparative negligence statute

may be complex, difficult and rath-

er obviously exactly legislature what They

intended. repeal did not specifically automobile they statute when en- comparative

acted the negligence statute language comparative negli-

gence statute demonstrates rather conclu-

sively they intended the continued vi-

tality of the automobile statute.

almost legisla- conclusive determination of

tive intent is the fact that in the 1973 ses-

sion of the Idaho H.B. No. 238

was introduced calling repeal for the guest statute, deci-

sively Journal, defeated. See H.R. 42nd

Legislative Original and First Session

1973, 131 perma- I 195. would make

nent the alternative writ heretofore issued.

Case Details

Case Name: Thompson v. Hagan

Court Name: Idaho Supreme Court

Date Published: Jun 26, 1974

Citation: 523 P.2d 1365

Docket Number: 11413

Court Abbreviation: Idaho