Summary
In Schwalbe, both the majority and dissenting opinions agreed that in assessing the validity of the classifications drawn by section 17158 under equal protection principles, the applicable equal protection standard of review is the so-called "traditional" or "restrained" standard of review, under which the judiciary affords challenged legislation a presumption of constitutionality.
Summary of this case from Cooper v. BrayOpinion
Page __
As Modified April 22, 1975.
For Opinion on Hearing, see 128 Cal.Rptr. 321, 546 P.2d 1033.
Opinion, 110 Cal.Rptr. 563, vacated.
Sullivan, J., dissented and filed opinion.
Herbert Resner, Stephen H. Tabor and Belli, Ashe & Choulos, San Francisco, for plaintiffs and appellants.
Gassett, Perry, Katzen, Frank & Bondelie and Ronald L. Stefani, San Jose, for defendant and respondent.
TOBRINER, Justice.
Prior to 1973, Vehicle Code section 17158 forbade civil recovery for injuries suffered by an automobile guest stemming from the negligent driving of his host. [120 Cal.Rptr. 586] [ 534 P.2d 74] The provision also precluded recovery by an automobile owner for injuries incurred while the owner was a passenger in his own vehicle and based upon the negligence of the person to whom the owner had entrusted his vehicle for driving.
In Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, we unanimously declared section 17158 violative of the equal protection guarantees embodied in the California (art. I, §§ 11, 21) and United States (14th Amend.) Constitutions insofar as the statute applied to negligence actions for injuries to automobile guests. Because plaintiff Brown was a nonowner passenger, however, we expressed no view in that opinion on the validity of the statute as applied to injuries sustained by owner passengers. (Brown v. Merlo, supra, at p. 862, fn. 3, 106 Cal.Rptr. 388, 506 P.2d 212.) Subsequent to that decision, the Legislature eliminated from section 17158 all reference to vehicular guests but retained the language respecting owner passengers.
Relying upon our decision in Brown v. Merlo, the Supreme Courts of Idaho, Kansas, and North Dakota have also held their guest statutes unconstitutional. (Thompson v. Hagen (1974) 96 Idaho 19, 523 P.2d 1365; Henry v. Bauder (1974), 213 Kan. 751, 518 P.2d 362; Johnson v. Hassett (N.D.1974) 217 N.W.2d 771.)
The Jacober case simply held that the particular exclusion there in question was ambiguous with respect to whether the named insured was to be excluded from recovery when a second 'insured,' the permissive user-driver, negligently injured him. It is to be assumed that insurance companies will be studious to avoid such ambiguity in the future by modelling their exclusions upon that which was approved in the Geyer and Brown cases, a course which we clearly invited in Jacober (see 10 Cal.3d at p. 206, 110 Cal.Rptr. 1, 514 P.2d 953). In so doing they will merely avail themselves of an exclusion expressly permitted by section 11580.1 of the Insurance Code. Any suggestion in Jacober that this would contravene some vaguely conceived public policy (see 10 Cal.3d at pp. 205-206, 110 Cal.Rptr. 1, 514, P.2d 953) must surely founder upon the explicit language used by the Legislature to authorize such exclusion. (See Farmers Ins. Exch. v. Geyer, supra, 247 Cal.App.2d 625, 629-632, 55 Cal.Rptr. 861; Travelers Indem. Co. v. Colonial Ins. Co. (1966) 242 Cal.App.2d 227, 234, 51 Cal.Rptr. 724; see generally Annot., 46 A.L.R.3d 1061.)
Vehicle Code section 17158 formerly read: 'No person riding in or occupying a vehicle owned by him and driven by another person with his permission and no person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver.' (Emphasis added.) The post-Brown modification of section 17158 eliminated the italicized language.
The novel doctrines of equal protection analysis which this court announced with a unanimous voice in Brown v. Merlo, supra, probably require further reflection and perhaps re-evaluation on our part.
Asked, in the instant case, to pass upon the validity of amended section 17158, we conclude that it suffers from infirmities similar to those which afflicted its unconstitutional predecessor. Like that predecessor, present section 17158 is not reasonably related to the dual legislative goals of protecting hospitality and eliminating collusive fraud. Although defendant contends that section 17158 serves to promote the public safety by encouraging owners to exercise care in the selection and control of drivers for their vehicles, the statute bears no rational relationship to that objective. We conclude that the mere fact of ownership can no more serve as a basis for depriving one of a negligence claim than can the status 'automobile guest.'
Because the event which precipitated this litigation occurred in 1967, the applicable version of section 17158 technically is the one in effect when we decided Brown, the version which precluded negligence actions by both owner passengers and guests. Since, however, that version and current section 17158 contain identical language respecting actions based on injuries to owner passengers, we essentially confront in this case the validity of the current statute.
It is in view of these factors that we must assess the accuracy of the following statement of the majority: 'At stake, in almost any action by an owner against the person driving him are not the financial fortunes of the owner and driver or the preservation of their mutual relationship but rather the assets of an insurance company.' (Ante, p. 5, p. 587 of 120 Cal.Rptr., p. 75 of 534 P.2d.)
Before explaining these conclusions, we set forth the undisputed principal facts of the present controversy. The action arose out of an automobile accident which occurred on an Oakland freeway in June 1967. Defendant Thomas Jones was driving a sports car which he had purchased new but had sold to his wife Patricia Schwalbe Jones prior to their marriage. Attached to the sports car by a nylon towline was an inoperable Renault, also owned by Patricia, in which Patricia was riding as a passenger and which one Albert Pol was steering. Approximately one mile after the vehicles entered the freeway, the nylon attachment suddenly broke. The Renault rolled over, and Patricia sustained fatal injuries. Her parents Dale and Leone Schwalbe thereafter brought the present wrongful death action against Thomas Jones. At the close of plaintiffs' evidence in that action, the trial court granted defendant's motion for nonsuit with respect to plaintiffs' negligence claim on the ground that section 17158 precluded [120 Cal.Rptr. 587] [ 534 P.2d 75] recovery on that theory. Plaintiffs contend that section 17158 is unconstitutional and that the trial court thus should have denied defendant's nonsuit motion.
Plaintiffs do not contend that section 17158 is inapplicable because Patricia was riding in the automobile being towed rather than the one which defendant was driving. Plaintiffs apparently are willing to concede that the towed and towing automobiles constituted one 'vehicle' for purposes of section 17158.
Even approaching the argument in the manner adopted by the majority, I cannot accept their conclusion that modern traffic conditions and the ineffectiveness of physical intercession render the distinction between an owner-passenger and a nonowner-passenger illusory in this respect. Admonitions by an owner relative to speed and careful conduct are bound to be heeded to a greater extent than similar admonitions by one who does not own the vehicle in which the parties are travelling.
Relying primarily upon our decision in Brown and the principles enunciated therein, we sustain plaintiffs' contentions. Brown served to demonstrate that former section 17158's prescription respecting automobile guests was not rationally related to its asserted purposes, protecting hospitality and reducing collusive fraud. (See also Ayer v. Boyle (1974) 37 Cal.App.3d 822, 112 Cal.Rptr. 636.) The hospitality argument, we explained, did not support differential treatment of automobile and other varieties of guests and also ignored the general prevalence of liability insurance. (Brown v. Merlo,supra, 8 Cal.3d at pp. 859, 864-872, 106 Cal.Rptr. 388, 506 P.2d 212.) We further explained that the interest in eliminating fraud did not justify wholesale preclusion of numerous bona fide claims and did not conform to a significant body of California common law decisions. (Id., at pp. 859-860, 872-878, 106 Cal.Rptr. 388, 506 P.2d 212.)
Looking to the rationales for the guest rule we rejected in Brown, we believe they also fail to sustain the owner rule. First of all, preclusion of negligence actions by owners does not rationally further any state interest in promoting hospitality. The widespread availability of liability insurance demonstrates that 'it is the insurance company, and not the [defendant driver], that in the majority of instances wins protection under [present section 17158].' (Brown v. Merlo, supra, at p. 868, 106 Cal.Rptr. at p. 397, 506 P.2d at p. 321.) At stake, in almost any action by an owner against the person driving him are not the financial fortunes of the owner and driver or the preservation of their mutual relationship but rather the assets of an insurance company.
Furthermore, if elimination of negligence claims by owner passengers has any effect upon hospitality, that effect may be one of deterrence rather than encouragement. The car owner often will be less rather than more inclined to invite others to drive his car if he is deprived of a cause of action in negligence against those others. (See Wilson v. Workman (D.Del.1961) 192 F.Supp. 852, 855; Peterson v. Winn (1962), 84 Idaho 523, 373 P.2d 925, 927; Note, Problems of Recovery Under the Iowa Guest Statute (1962) 47 Iowa L.Rev. 1049, 1056.) Indeed, current section 17158 deprives the host of his negligence claim, not the guest. The owner, who often will have done his guest a favor by permitting him to travel in and drive the owner's car, finds himself unable to recover for the guest's negligence. Rather than reward the owner for his generosity, the statute penalizes him for it.
Some, of course, may conceive of statutes like old and new sections 17158 not primarily as means to affect behavior but as ways merely to affirm the moral precept often expressed by the adage: 'Don't bite the hand that feeds you.' (Cf. Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication (1973) 83 Yale L.J. 221, 222-224.) Should this be the preferred explanation, the analysis in text can be easily translated into the argument that in the present context, the bite is on the other hand.
The statute distinguishes between cases involving ordinary negligence and those in which injury or death proximately results from intoxication or willful misconduct on the part of the driver. This clearly represents a determination by the Legislature that, whereas ordinary negligence on the part of the driver should not render him liable to suit by the owner who allows him to drive and then proceeds to ride as a passenger, certain forms of more heinous conduct on the part of the driver should be treated differently--at least in the absence of equally reprehensible conduct on the part of the owner-passenger which would prevent recovery under settled common law principles. (See Williams v. Carr (1968) 68 Cal.2d 579, 68 Cal.Rptr. 305, 440 P.2d 505, and cases there discussed and cited.)
We also believe that present section 17158 fares no better with respect to the other rationale we confronted in Brown, namely that elimination of negligence actions by automobile guests is an acceptable means to eliminate collusive fraud. As explained in Brown (supra, 8 Cal.3d at pp. 872-878, 106 Cal.Rptr. 388, 506 P.2d 212), we have rejected analogous arguments in various common law contexts (see, e. g., Gibson v. Gibson (1971) 3 Cal.3d 914, 919-920, 92 Cal.Rptr. 288, 479 P.2d 648 (negligence action by child against parent); Klein v. Klein (1962) 58 Cal.2d 692, [120 Cal.Rptr. 588] [ 534 P.2d 76] 695-696, 26 Cal.Rptr. 102, 376 P.2d 70 (negligence action by spouse against spouse)), and believe the rationale a constitutionally unacceptable justification for the guest rule. (Cf. Glona v. American Guar. & L. Ins. Co. (1968) 391 U.S. 73, 76, 88 S.Ct. 1515, 20 L.Ed.2d 441; Gomez v. Perez (1973) 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56.) Comparing that rule to present section 17158, we concur in the statement of Justice Peters that 'there is no more danger of a fraudulent claim being filed by an owner occupant . . . than by a . . . nonowner occupant' and that 'there is no more danger of an owner occupant conniving with the driver than there is from a nonowner occupant.' (Patton v. La Bree (1963) 60 Cal.2d 606, 611, 35 Cal.Rptr. 622, 625, 387 P.2d 398, 401 (dissenting opinion).)
We conclude, therefore, that the interest in protecting hospitality and preventing fraud affords no basis for distinguishing owner passengers from nonowner passengers. Consequently, present section 17158 can endure only if it rationally furthers some legitimate objective other than those proclaimed as justifications for the guest rule. Defendant offers only one such alternative, namely that an owner passenger is more able than a nonowner passenger to direct and control the behavior of persons driving his car. The argument apparently is that a car owner will be more inclined to control the driver if the owner recognizes that if injured, he cannot bring a negligence action against the driver. The beneficiary, argues defendant, is the public whose exposure to careless driving decreases proportionately to the increased vigilance of the owner. For the reasons discussed below, we conclude that the present statute cannot be sutained on this basis.
To begin with, we cannot accept the main premise of defendant's argument, namely that an owner passenger is in a substantially better position to eliminate automobile accidents than a nonowner passenger or guest. First, it is common knowledge that as a result of the speed at which cars now travel and the congestion of streets and freeways, most traffic accidents develop almost instantaneously, leaving any passenger--owner or nonowner--little opportunity to intercede. Second, as for those few occasions when he has time to respond, the owner passenger's ability to prevent an accident is still greatly limited; once he has surrendered the wheel, the owner, to revert to a cliche, is no longer 'in the driver's seat.' Physical intercession in all likelihood would increase rather than reduce the probability of mishap, and in any event, the likelihood and effectiveness of physical intercession as well as verbal assistance such as the sounding of a warning are functions of a passenger's presence in the car, not his title to the car.
Under the former rule of contributory negligence, if either owner or nonowner passenger negligently failed to minimize the risk of an accident, his subsequent suit would have been barred by contributory negligence. (See Pobor v. Western Pac. R. R. Co. (1961) 55 Cal.2d 314, 324, 11 Cal.Rptr. 106, 359 P.2d 474.)
As the majority opinion correctly observes, even though the accident in this case occurred prior to 1973, 'we essentially confront in this case the validity of the current statute.' Ante, p. 4, p. 586 of 120 Cal.Rptr., p. 74 of 534 P.2d, fn. 3.)
Defendant contends, however, that even if the owner has little control once the permissive user is 'in the driver's seat,' he nevertheless has absolute control over who will drive his automobile. Defendant argues that the present statute, by barring an action by the owner against a negligent driver, is rationally related to the objective of encouraging owners to use due cars in selecting those to whom they will entrust their vehicle. This contention, although superficially appealing, cannot withstand analysis.
This argument would not apply to a case in which an owner was injured by the negligent driving of an operator selected by another co-owner.
It is interesting to note that AB 1094 as originally introduced contemplated repeal of former section 17158 in its entirety, but that upon recommendation of the Assembly Committee on Judiciary the bill was amended before passage to preserve the owner portion of the former section. (See 2 Assem.J. (1973-1974) p. 2646.) In Brown, of course, we specifically refrained from expressing an opinion as to the validity of the owner portion. (See 8 Cal.3d at p. 862, fn. 3, 106 Cal.Rptr. 388, 506 P.2d 212.)
Both now and in 1961, when the guest statute was amended to include owner passengers, under settled common law principles an owner who negligently entrusts his car to an incompetent, intoxicated or [120 Cal.Rptr. 589] [ 534 P.2d 77] known careless driver is liable to third persons injured by that driver's negligent operation of the vehicle. The statute adds nothing to the owner's liability. Moreover, under common law principles applicable when the statute was enacted, an owner who negligently entrusted operation of his car and in consequence sustained injuries would find his action against the driver barred by contributory negligence. Consequently, the only effect of the present statute--precluding recovery by any passenger owner--is to bar actions by those owners who do exercise due cars in selecting the driver of their vehicle. Indeed, in foreclosing an owner's recovery regardless of his exercise of due care, the instant provision actually eliminates one incentive to the owner's careful selection of a driver!
See, e. g., Brockett v. Kitchen Boyd Motor Co. (1968) 264 Cal.App.2d 69, 73-74, 70 Cal.Rptr. 136; Syah v. Johnson (1966) 247 Cal.App.2d 534, 538-540, 55 Cal.Rptr. 741; Nault v. Smith (1961) 194 Cal.App.2d 257, 267, 14 Cal.Rptr. 889; Caccamo v. Swanston (1949) 94 Cal.App.2d 957, 963, 212 P.2d 246.
In State Farm Mut. Auto. Ins. Co. v. Jacober, supra, 10 Cal.3d 193, at page 208, 110 Cal.Rptr. 1, 514 P.2d 953, we disapproved certain language in the Trarelers Indemnity and Hale ases. In Argonaut Ins. Co. v. Transport Indem. Co. (1972) 6 Cal.3d 496, at page 505, 99 Cal.Rptr. 617, 492 P.2d 673, we disapproved certain other other conclusions reached in Trarelers Indemnity. The material disapproved in those cases, however, was not relevant to the point here at issue.
Vehicle Code section 17150 provides that an automobile owner is liable for injuries to third persons resulting from a permissive driver's negligent operation of the owner's vehicle. (See, e. g., Glens Falls Ins. Co. v. Consolidated Freightways (1966) 242 Cal.App.2d 774, 51 Cal.Rptr. 789.) Nothing in this opinion is intended to cast any doubt on the validity of section 17150. (See Burgess v. Cahill (1945) 26 Cal.2d 320, 323, 158 P.2d 393; Souza v. Corti (1943) 22 Cal.2d 454, 456-457, 139 P.2d 645.)
The majority characterize the legislative ground here advanced as one 'designed to protect the uninsured guest driver who negligently injures the owner-passenger of a vehicle that the guest is driving.' (Ante, p. 9, p. 589 of 120 Cal.Rptr. p. 77 of 534 P.2d]; italics added.) Lamentably, the majority continue to miss the point--which is simply that the Legislature might reasonably have concluded that the guest driver, be he insured or uninsured, should not be held liable for ordinary negligence causing damage to an owner who elects to appoint that guest as the driver and to ride himself as a passenger.
See Friedenthal, Imputed Contributory Negligence: The Anomoly in California Vehicle Code Section 17150 (1964) 17 Stan.L.Rev. 55, 58. No California cases discuss the contributory negligence of an owner in negligently selecting a driver. The cases do establish that a passenger is barred from recovery if he negligently chooses to travel with a known drunk, careless or incompetent operator (see Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal.2d 480, 488, 55 P.2d 870; Strnod v. Abadie (1960) 181 Cal.App.2d 737, 742, 5 Cal.Rptr. 627; Prosser, Torts (4th ed. 1971) p. 489; 4 Witkin, Summary of California Law (8th ed. 1974) pp. 2978-2979; cf. Roberts v. Craig (1954) 124 Cal.App.2d 202, 212, 268 P.2d 500 (assumption of risk).) The owner passenger, doubly negligent in choosing the driver and in choosing to travel with him, would fare no better.
Finally, the challenged statute, by its own terms, makes it crystal clear that the provision was not conceived as a means of ensuring care in an owner's selection of a driver. As noted above (fn. 2, supra) the statutory bar to recovery is explicitly not applicable if the owner's injury or death results from the driver's 'intoxication or willful misconduct.' Surely, if the purpose of the provision was to encourage owner diligence, the Legislature would not have provided an exception when an accident is caused by an intoxicated driver. In sum, because the statute draws no distinction between those owners who exercise due care in selecting a driver and those who do not, the provision cannot be sustained on the ground defendant suggests.
To the extent that it is inconsistent with this conclusion, Patton v. LaBree (1963) 60 Cal.2d 606, 35 Cal.Rptr. 622, 387 P.2d 398 is overruled.
In a rather desperate and novel argument the dissent attempts to uphold the constitutionality of the statute on the unexpected ground that it was designed to protect the uninsured guest driver who negligently injures the owner-passenger of a vehicle that the guest is driving. In embracing this analysis, however, the dissent relies on speculative factual premises not supported by the record and attributes a purpose to the Legislature--protecting the uninsured driver from liability for his negligent acts--which is not only unsupported by any legislative history but which, in fact, runs counter to the fundamental state policy of encouraging automobile drivers to obtain insurance.
The dissent suggests that the 'practical realities' are that most drivers covered by the present statute will not have obtained insurance coverage, basing this supposition not on any facts in evidence in this case but on the dissent's speculation as to coverage afforded by most owners' insurance policy. In the first place, we are in no position[120 Cal.Rptr. 590] [ 534 P.2d 78] on the instant record to draw any conclusions as to the percentage of outstanding owners' insurance policies which contain valid clauses excluding coverage for injuries to the owner of the car. (Cf. State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 110 Cal.Rptr. 1, 514 P.2d 953.) Secondly, and more significantly, the statistics cited in Brown v. Merlo, supra, 8 Cal.3d at p. 868 and fn. 10, 106 Cal.Rptr. at p. 397, 506 P.2d at p. 221, demonstrate that nearly 85 percent of automobile 'drivers involved in reported accidents held liability insurance' (emphasis added); those statistics included drivers who did not own the care in which they were driving at the time of the accident. Thus, the dissent's entire analysis is founded on a totally speculative, and probably erroneous, factual premise.
Moreover, when the Legislature amended Vehicle Code section 17158 in 1961 to bar suits by owner-passengers, neither statute nor judicial decision in California authorized an insurer to deny coverage under an owner's liability policy to a driver who negligently injured the owner. The dissent's suggestion that when the Legislature reenacted the identical language in 1973 it did so to protect the allegedly uninsured driver--uninsured because the Legislature, three years earlier, had authorized his exclusion from the owner's policy--is likewise totally speculative.
In view of the basic California policy of seeking to encourage automobile drivers to carry liability insurance (see Veh.Code, § 16000 et seq.) we cannot believe that the Legislature enacted or reenacted section 17158 to protect those drivers who choose not to obtain their own insurance, and, in particular, to afford that protection at the expense of the very victims whom such uninsured drivers negligently injured. Nothing in the legislative history even remotely supports such a theory.
Nor can we follow the dissent's convoluted reasoning that because a negligent owner-driver (or any negligent driver, for that matter) cannot recover for injuries caused by his own negligence, the Legislature thought it unfair to permit a non-negligent owner-passenger from recovering for injuries caused by the driver's negligence. Surely, such a highly fictional approach cannot be the proper basis for resolving fundamental constitutional questions. (See Eisenstadt v. Baird (1972) 405 U.S. 438, 442-443, 92 S.Ct. 1029, 31 L.Ed.2d 349; Brown v. Merlo, supra, 8 Cal.3d at pp. 865-866, fn. 7, 106 Cal.Rptr. 388, 506 P.2d 212.)
To reiterate, we believe that the Legislature's asserted desire to protect hospitality and prevent collusive fraud fails to sustain the constitutionality of the present section 17158 just as it failed to support the guest rule itself. In similar fashion the claim that section 17158 encourages car owners to exercise control over persons who drive them fails to serve as a sufficient alternative justification.
Thus section 17158 can claim no more constitutional viability than its predecessor.
We reverse the judgment with respect to plaintiffs' cause of action in negligence and remand to the superior court for the purpose of permitting plaintiffs to proceed with their negligence claim.
McCOMB, MOSK and BURKE, JJ., concur.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
SULLIVAN, Justice (dissenting).
I dissent.
Not only do the majority strike down the statute here in controversy by ignoring well-settled principles of equal protection developed by the United States Supreme Court and by this court, but they do so with an astonishing unconcern for the practical realities inherent in the facts before us. In my view both the result reached and the reasoning fashioned to justify it are wholly incorrect.
[120 Cal.Rptr. 591] [ 534 P.2d 79] Turning first to the practical aspect of the case, I find it remarkable that an opinion which grounds so much of its reasoning upon 'the widespread availability of liability insurance' should fail to note that the policy presumed to afford primary protection in cases of this nature, i.e., the owner's policy, will in most if not all cases provide no coverage at all. Section 11580.1, subdivision (c) of the Insurance Code specifically provides that a policy of automobile liability insurance may by appropriate policy provision be made inapplicable to: '. . . (5) Liability for bodily injury to an insured. [and] (6) Liability for damage to property owned, rented to, transported by, or in charge of, an insured. . . .' We may judicially notice as a matter of generalized knowledge (Evid. Code, § 451, subd. (f)) that substantially all such policies contain exclusions of this nature. These exclusions, if stated in unambiguous terms, clearly operate to preclude an owner from recovering damages for his own bodily injuries or to his own property under the liability portion of his policy under any circumstances, including those here in question. (See Farmers Ins. Exch. v. Brown (1967) 252 Cal.App.2d 120, 122, 60 Cal.Rptr. 1; Farmers Ins. Exch. v. Geyer (1967) 247 Cal.App.2d 625, 632, 55 Cal.Rptr. 861; cf. State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 110 Cal.Rptr. 1, 514 P.2d 953. 1) Moreover, such recovery would be precluded to the owner under the uninsured motorist provisions of his policy. (Ins.Code, § 11580.2, subd. (b)(2); see Hale v. State Farm Mut. Auto Ins. Co. (1967) 256 Cal.App.2d 177, 181-183, 63 Cal.Rptr. 819; see also State Farm Mut. Auto. Ins. Co. v. Jacober, supra, 10 Cal.3d 193, 205, 110 Cal.Rptr. 1, 514 P.2d 953.) Thus the practical effect of today's decision is simply this: whereas a 'person riding in or occupying a vehicle owned by him and driven by another person with his permission' (Veh.Code, § 17158) may now recover for injuries sustained by him as a result of the driver's negligence, the only insurance coverage he may look to for this purpose will be whatever is available under the driver's policy. If the driver has no such policy, the injured owner's only recourse is to the driver's personal assets.
This state of affairs, the majority suggest, is only as it should be. If it were otherwise, we are told, '[t]he owner, who often will have done his guest a favor by permitting him to travel in and drive the owner's car, [would find] himself unable to recover for the guest's negligence.' We are left to reflect without comment upon those cases in which the driver 'often' will have done hishost a favor by consenting to or even acceding to a request on the part of the owner to drive the owner to some destination. This 'guest,' we are left to assume, deserves sympathy but not legal protection.
The 1961 Legislature, in enacting the owner portion of Vehicle Code section 17158, doubtless wished to avoid such a situation. At that time there had been two recent California appellate decisions considering the question whether an owner-passenger could be a 'guest' within the meaning of the then guest statute; the issue[120 Cal.Rptr. 592] [ 534 P.2d 80] had been whether by furnishing the car in particular circumstances the owner-passenger had given 'compensation.' (Ahlgren v. Ahlgren (1957) 152 Cal.App.2d 723, 313 P.2d 88; Ray v. Hanisch (1957) 147 Cal.App.2d 742, 306 P.2d 30; see also Note (1958) 32 So.Cal.L.Rev. 93; Note (1957) 4 U.C.L.A.L.Rev. 652.) The Legislature, apparently concluding that the presence or absence of 'compensation' should not be the determinative factor in the case of the owner-passenger, thereupon adopted the provision here in question, which bars the owner-passenger from recovery for simple negligence regardless of whether he gives 'compensation' to the driver or not. (See Patton v. La Bree (1963) 60 Cal.2d 606, 608, 35 Cal.Rptr. 622, 387 P.2d 398, Selected 1960-1961 California Legislation (1961) 36 State Bar J. 643, 858.)
Although there is no legislative history as such on the point, the probable reasoning of the lawmakers is clear: whereas the presence or absence of 'compensation' may be determinative in the normal guest situation (the thought being that the twin interests of encouragement of collusive fraud are not endangered when the guest is one who compensates the owner-driver), such a factor is wholly without relevance in the context of the owner who rides as a passenger. Whether or not the owner-passenger 'compensates' his driver, he in all cases has the power to select the driver with whom he rides and to a great extent to control the manner in which his car is driven. Therefore, the Legislature doubtless concluded, he should not be permitted to recover for ordinary negligence against the person he so selects and controls--regardless of who is doing a 'favor' for whom in the context of the particular arrangement.
The majority, bringing into play the engine of 'new' equal protection analysis which was developed and utilized in striking down the guest portion of section 17158 (Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212) 2 now conclude that the owner provision 'suffers [120 Cal.Rptr. 593] [ 534 P.2d 81] from infirmities similar to those which afflicted its unconstitutional predecessor' and strike it down as well. In reaching this conclusion, however, the majority fail to consider that the legislative goals and purposes underlying the owner provision might indeed be wholly different from those which were considered in overturning the guest provision. Lacking this insight, the majority proceed to measure the provision against the same two asserted purposes with which this court concerned itself in Brown (i.e., promoting hospitality and preventing collusive fraud)--following this exercise by a rather oblique rejection of an 'alternative' objective which, when given the full and fair consideration I propose to provide, will appear as the true legislative purpose here at stake.
I first consider briefly the majority's treatment of the two asserted purposes which it gratuitously imports from its guest provision analysis. First, as to the matter of promoting hospitality, the majority conclude that here, as in the case of the guest provision, '[the] preclusion of negligence actions by owners does not rationally further any state interest in promoting hospitality.' (Ante, p. 5, p. 587 of 120 Cal.Rptr., p. 75 of 534 P.2d.) This is so, we are told, because it is the assets of insurance companies which are at stake, not the assets of real people. I find this very difficult to understand in light of the fact, explained above, that the only insurance policy which could conceivably be involved in a case of this nature would be that of the permittee-driver, if he should happen to have one. In all cases in which the permittee-driver does not own an automobile liability policy (as might be expected, for instance, when the permittee-driver does not himself own a car), it will indeed be the assets of real people which will be involved. 3
Furthermore, the majority assure us, the statute's elimination of claims by owner-passengers may well have the effect of deterring hospitality rather than promoting it--this because with such a rule in effect an owner will be reluctant to invite others to drive his car when he is a passenger therein. The other side of that coin, however, we have pointed out above: in the absence of such a rule, those invited or asked to drive another's vehicle for the convenience of the owner will be justifiably reluctant to do so unless they are themselves insured. Thus, the net effect of the argument concerning hospitality is inconclusive. [120 Cal.Rptr. 594] [ 534 P.2d 82] This is so, as I have suggested above, because considerations of hospitality might well have been of relatively little moment to the Legislature in its enactment of the provision in question.
The same observation applies to the majority's discussion of the matter of collusive fraud. In this respect, we are told the owner provision is lamentably overinclusive because it indiscriminately punishes the innocent along with the guilty--i.e. the honest claimant along with the fraudulent claimant. What we are not told, however, is that the only instance in which collusive fraud against an insurance company will now be possible will be in the case of a permittee-driver who is himself insured under his own policy. The contemplated scenario, then, will be something like this: The owner, having allowed another to drive his car while he rides as a passenger (whether for his convenience, the driver's convenience, or their mutual convenience) is injured when the car is involved in an accident. Although the permittee-driver was not responsible for the accident and was in no way negligent, he is prevailed upon by the injured owner (whether through moral suasion or through a promise of financial gain) to falsely confess negligence--not so that the owner can recover on his own policy but so that he can recover on the permittee-driver's policy. This the driver agrees to do, in spite of his knowledge that the incident might well affect his future premiums or insurability.
It is absurd to imagine that the Legislature, in passing the owner provision, did so in order to prevent the occurrence of the above events. If this had been is aim, it surely would have been guilty of using too broad a brush, for the owner provision prevents recovery not only by the collusive malefactors we have described but also by any owner seriously injured through the clear negligence of an uninsured permittee-driver, whether he be rich or poor--such owner being in all cases unprotected by his own policy. A more reasonable approach--indeed, the only sensible approach if the Legislature had had this objective in mind--would have been to permit an insurer to exclude coverage for injuries to the owner of a vehicle being driven by its insured with the permission of such owner. (See Ins.Code, § 11580.1(c)(5).) The fact that it did not do so, but instead enacted a broad provision precluding all recovery without regard to applicable insurance, indicates a broader and more comprehensive legislative purpose.
I am thus brought to the third possible justification treated by the majority. In Patton v. La Bree, supra, 60 Cal.2d 606, 35 Cal.Rptr. 622, 387 P.2d 398, the very issue now before us was squarely decided by this court. Chief Justice Gibson, speaking for the court, stated the matter thus: 'It cannot be said that the classification made by the Legislature in the 1961 amendment to section 17158 is arbitrary or that no set of facts reasonably can be conceived that would sustain it. The relationship between a driver and the owner of the car who is a passenger is obviously different from that existing between a driver and a passenger who is not an owner. In making the distinction between owner-passengers and nonowner-passengers, the Legislature may have taken into consideration the fact that an owner generally has the right to direct and control the driver, but a nonowner ordinarily does not have that right.' (60 Cal.2d at p. 609, 35 Cal.Rptr. at p. 624, 387 P.2d at p. 400.) The majority opinion in this case, although making no direct reference to this clear holding, manages to rephrase it as a contention of defendant and, in so doing, wholly misconceives its intent and import. 'The argument,' state the majority, 'apparently is that a car owner will be more inclined to control the driver if the owner recognizes that if injured, he cannot bring a negligence action against the driver. The beneficiary, argues defendant, is the public whose exposure to careless driving decreases proportionately to the increased vigilance of the owner.' (Ante, pp. 6-7, pp. 588-589 of 120 Cal.Rptr., pp. 76-77 of 534 P.2d.)
The majority have simply missed the point. The owner's right to direct and [120 Cal.Rptr. 595] [ 534 P.2d 83] control the driver when he allows another to drive his car and himself rides as a passenger distinguishes him from the nonowner-passenger not in terms of his ability to exercise effective control 4 but in terms of his standing to seek recovery for injuries which he sustains due to the ordinary negligence of the driver which he has selected. Thus, the thrust of our Patton holding is this: the Legislature might reasonably have concluded that the owner of an automobile who, rather than driving himself, selects another and allows him to drive, subject to the owner's right to direct and control such driving, should not be permitted to recover when the ordinary negligence 5 of that driver results in injury to the owner.
The rationality and cogency of this determination is best considered in the context of the 1973 re-enactment of section 17158. 6 When, this court, in February of 1973, held in the Brown case that the guest portion of former section 17158 was offensive to the equal protection guarantees of the state and federal Constitutions, the Legislature found itself called upon to make a determination whether the owner portion of the statute was subject to the same constitutional objection and should be repealed along with the guest portion. Guidance in making this determination was afforded the lawmakers in one of the closing paragraphs of our Brown opinion, where we stated: 'Nothing we have said is intended to imply that only common law rules of negligence can govern automobile liability. We hold only that in undertaking any alteration or reform of such rules the Legislature may not irrationally single out one class of individuals for discriminatory treatment.' (8 Cal.3d at p. 882, 106 Cal.Rptr. at p. 407, 506 P.2d at p. 231, italics added.) Addressing itself to the owner provision with this standard in mind, the Legislature promptly re-enacted it as new section 17158. Although here, as in the case of the 1961 statute, legislative history is scant with respect to the actual thinking of the lawmakers, 7 it is not difficult to reconstruct the probable course of their reasoning:
In a line of cases extending at least back to 1966, supported by authorities from other jurisdictions extending back considerably further than that, the courts of this state had indicated that a liability insurance provision excluding the named insured or members of his family from coverage was valid and not in contravention [120 Cal.Rptr. 596] [ 534 P.2d 84] of public policy. (See Travelers Indem. Co. v. Colonial Ins. Co., supra, 242 Cal.App.2d 227, 234, 51 Cal.Rptr. 724; Farmers Ins. Exch. v. Geyer, supra, 247 Cal.App.2d 625, 629-632, 55 Cal.Rptr. 861; Farmers Ins. Exch. v. Brown, supra, 252 Cal.App.2d 120, 122, 60 Cal.Rptr. 1; Hale v. State Farm Mut. Auto. Ins. Co., supra, 256 Cal.App.2d 177, 180-181, 63 Cal.Rptr. 819; Paul Masson Co. v. Colonial Ins. Co. (1971) 14 Cal.App.3d 265, 269, 92 Cal.Rptr. 463; cf. Farmers Ins. Exch. v. Frederick (1966) 244 Cal.App.2d 776, 781, fn. 3, 53 Cal.Rptr. 457; see generally Annot., 46 A.L.R.3d 1061.) 8 Moreover, in view of these authorities the Legislature had amended section 11580.1 of the Insurance Code to expressly permit such an exclusion. (Stats.1970, ch. 300, p. 573, § 4; see fn. 1, ante, and accompanying text.)
Thus, when in 1973 the Legislature faced the question whether the owner portion of former section 17158 should be reenacted, it did so in the context of its own prior enactment, whose practical effect was to preclude the owner from recourse to his own policy. The Legislature knew that in the absence of a statutory direction to the contrary, an owner-passenger injured through the ordinary negligence of one he had selected and allowed to drive his vehicle could and would seek his recovery from the insurance or personal assets of the driver. This, the Legislature obviously concluded, was simply not fair. Clearly an owner cannot recover for injuries sustained due to his own negligence while he himself is at the wheel. If, rather than driving himself, he allows another to drive and rides as a passenger, retaining some power of supervision, should he be in any better position--and at the expense of the driver? 9 Apparently concluding that he should not, the lawmakers proceeded to re-enact the owner portion of former section 17158.
In order to hold that the classification created by new section 17158 offends equal protection, we are required, even in the language of Brown itself, to demonstrate that the foregoing reasoning is irrational. In my view the majority have wholly failed to make that demonstration. The Legislature has simply concluded that the owner of a motor vehicle, whether he drives it himself or selects another to act as his chauffeur, is not to recover for injuries sustained by him due to the negligent operation of that vehicle--especially in light of the practical fact that any such recovery would necessarily be at the expense of the surrogate driver. We may disagree with this conclusion, but in my view we cannot brand it as beyond the pale of reason. To do so would be to seriously erode our constitutional function.
I would affirm the judgment.
WRIGHT, C. J., and CLARK, J., concur.
In the first place I believe that a court, in determining whether a legislative classification bears a rational relationship to a permissible state purpose, should not restrict its examination solely to a purpose 'traditionally . . . advanced in both judicial precedent and academic commentaries' (8 Cal.3d at p. 864, 106 Cal.Rptr. at p. 394, 506 P.2d at p. 218)--but rather should examine all available sources in its search for any conceivable legitimate purpose which might have motivated the Legislature, as well as any conceivable legitimate purpose which might presently be served by the legislation. This was the law of this state--and so far as I am advised of this nation--as late as March of 1974, when this court decided D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (see pp. 16-17, 22, 112 Cal.Rptr. 786, 520 P.2d 10), and to the extent that the earlier Brown case seeks to indicate a contrary view (see 8 Cal.3d pp. 865-866, fn. 7, 106 Cal.Rptr. 388, 506 P.2d 212) I must declare my present disagreement with it.
Secondly, I do not believe that proper constitutional adjudication requires more than that a statute's relation to a permissible purpose be rational. The casual use in Brown of words such as 'sufficient' and 'substantial' in varying combinations with the basic standard of rationality should not in my view be accorded constitutional significance. To do so would be to undertake an insidious intrusion into what is properly a legislative domain. (See generally Note, The Supreme Court of California 1972-1973 (1974) 62 Cal.L.Rev. 406, 648, 652-660.) In short, to elevate our language in Brown into doctrinal concept might well subject us to the criticism of promoting tort policy at the expense of established constitutional principle. (See Note, Judicial Activism in Tort Reform (1974) 21 U.C.L.A.L.Rev. 1566, 1569.)
Finally, in my view the technique employed in Brown of expressing the supposed legislative purpose in terms of an overly broad 'superclass' ('recipients of hospitality' (8 Cal.3d at pp. 864-866, 106 Cal.Rptr. 388, 506 P.2d 212)) in order to more easily level the charge of underinclusion at the particular statute, is not only transparently casuistic (see Note, Legislative Purpose, Rationality, and Equal Protection (1972) 82 Yale L.J. 123, 132-138) but leads to results wholly at odds with established principles. '[T]here is no constitutional requirement that a regulation, in other respects permissible, must reach every class to which it might be applied--that the Legislature must be held rigidly to the choice of regulating all or none. . . . It is enough that the . . . statute strikes at the evil where it is felt and reaches the class of cases where it most frequently occurs.' (Siver v. Silver (1929) 280 U.S. 117, 123-124, 50 S.Ct. 57, 59, 74 L.Ed. 221; Werner v. Southern Cal. Etc. Newspapers (1950) 35 Cal.2d 121, 132-133, 216 P.2d 825.)
In my view the foregoing principles continue to govern constitutional adjudication in this area--whether it be the state or the federal equal protection guaranty which is being applied--and the Brown case, to the extent that it may indicate anything to the contrary, is, I suggest, nothing more than a casual, if aberrant, acknowledgment of academic speculation on the subject. (See Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv.L.Rev. 1.) Again with all respect to the majority, if they feel as they seem to that, despite our unanimous adherence to settled constitutional principle in our later opinion in D'Amico, our opinion in Brown prefigures a new trend in equal protection analysis, I think it would be wise for this court to take a firm stand against any future application of it.
It is noteworthy that the Texas courts have emphatically rejected our Brown rationale in upholding the guest statute in that state against constitutional attack. (Tisko v. Harrison (Tex.Civ.App.--Dallas 1973, writ refd. m. r. e.) 500 S.W.2d 565.)