upholding automobile guest statute by holding that the statute applies to "all owners and operators of motor vehicles and their guests and none are excluded"Summary of this case from In re Interrogatory by Governor Romer
Decided May 2, 1960. Rehearing denied May 23, 1960.
Action by passenger for damages for personal injuries resulting from automobile accident. Judgment for defendants.
1. CONSTITUTIONAL LAW — Common Law Right of Action — Personal Injuries. Article II, Sec. 6 of the state constitution contains no provision preserving the common law right of action for injury to person or property.
2. Injuries — Speedy Remedy. Article II, Sec. 6 of the Colorado constitution providing that courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person or property, does not undertake to preserve existing duties against legislative change before a breach of such duty occurs.
3. Common Law — Rule of Decision — Legislative Determination. The common law of England was not preserved in the Colorado constitution or in any amendment thereto, its application depending upon legislative enactment and is in full force and effect only until repealed or altered by the General Assembly.
4. STATUTES — Automobiles — Guest Statutes — Validity. The Colorado Guest Statute (C.R.S. '53, 13-9-1) contains no constitutional infirmities.
5. CONSTITUTIONAL LAW — Right — Common Law — Abolition. The constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law to obtain a permissive legislative object.
6. AUTOMOBILES — Guest Statute — Validity. The Colorado Guest Statute (C.R.S. '53, 13-9-1) applies to all owners and operators of motor vehicles and their guests and none are excluded; all persons who ride as guests in such vehicles are precluded from recovering for injury, death or loss caused by the operator's ordinary negligence; the act applies alike to all persons who ride as guests of the owner and it does not exempt any special or particular individual from its operation, nor deprive such individuals of a right of action, hence is not invalid as a special or local law under Art V. Sec. 25 of the state constitution.
7. Constitutional Law — Guest Statute — Due Process. The Colorado Guest Statute (C.R.S. '53, 13-9-1 does not violate the due process clause of the Federal Constitution nor any of the provision of the State Constitution.
Error to the District Court of Arapahoe County, Hon. Martin P. Miller, Judge.
Mr. ALAN L. STERNBERG, Mr. ROBERT E. LONG, Miss JANET K. SOUTHWORTH, for plaintiff in error.
Mr. MYRON H. BURNETT, for defendants in error.
THE parties are here in the same order they appeared in the trial court, and we will so refer to them, or by name. Robert J. Guerrette is the husband of Rose M. Guerrette and plaintiff sought to fix liability as against him under the family car doctrine.
The complaint alleged that plaintiff suffered physical injuries entitling her to damages as a result of an automobile accident which occurred in March 1956; on this occasion defendant Rose M. Guerrette was driving the automobile owned by her husband; the plaintiff and her three children were passengers in said automobile; that at a point east of Deer trial, Colorado, defendant Rose M. Guerrette drove said automobile "in a willful, wanton, negligent, reckless and careless manner and at a high dangerous and excessive rate of speed" resulting in said automobile being "violently propelled off of the said highway and into a borrow pit; that at said time and place the plaintiff was a fare-paying passenger."
Defendants answered admitting the accident; denied that there was any "negligence willful or wanton, or reckless conduct" on the part of Rose M. Guerrette as alleged in the complaint, and further alleged that plaintiff was a guest in said automobile, within the meaning of the Colorado Guest Statute, C.R.S. '53, 13-9-1. Additional defense were set forth in the answer which we need not here consider.
Following trial of the action, at which plaintiff's counsel urged the unconstitutionality of the Colorado Guest Statute, plaintiff was permitted to amend her complaint setting forth her contention that the Colorado Guest Statute is unconstitutional. The court directed a verdict in favor of defendants, and the action was dismissed.
Motion for new trial was dispensed with and plaintiff is here on writ of error.
The testimony discloses that defendant Rose M. Guerrette desired to visit relatives in Illinois; that she intended to take her infant child with her ; that it was agreed that plaintiff and her three children would accompany her, and await the return of Mrs. Guerrette in order to return to Colorado.
On the day of the accident the four children were in the back seat of the automobile, and becoming unruly were admonished by plaintiff to quiet down. Late Mrs. Guerrette momentarily took her eyes from the road, turned toward the rear of the automobile and told the children to settle down. At that time the right wheels of the car left the pavement; that plaintiff said "Rose, you are off the pavement" and Mrs. Guerrette immediately turned her attention to the driving and attempted to get the car back on the pavement, was unsuccessful in doing so resulting in the accident.
It is claimed that relationship of host and guest did not exist in this case because there was testimony that Mrs. Guerrette did not care to drive alone and that plaintiff was to pay one-half of the "cost of the gas and oil on the trip."
A careful reading of the record shows that plaintiff was a guest in the Guerrette automobile at the time of the accident. Plaintiff was not being carried for the benefit of Mrs. Guerrette. We find no error in the ruling of the trial court that plaintiff was a guest, and that defendant Rose M. Guerrette was not guilty of the willful, wanton, and reckless conduct in driving the said automobile prerequisite to recovery under the Colorado Guest Statute.
The principal matter urged by plaintiff in her brief and on oral argument is that the Colorado Guest Statute contravenes the Federal and State Constitutions on various grounds.
It is said that the Colorado Guest Statute contravenes Art. II, Secs. 3, 6, 14, 15 and 25 of the Colorado Constitution and the Fourteenth Amendment to the Constitution of the United States.
The Colorado guest statute, C.R.S. '53, 13-9-1, provides:
"No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his intoxication or by negligence consisting of a willful and wanton disregard of the rights of others * * *"
Counsel for plaintiff contends that this enactment is unconstitutional in that it violates Articles II, Section 6, of the Colorado Constitution which provides that "Courts of Justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial, or delay," and relies chiefly upon the dissenting opinion in Noakes v. Gasier, 136 Colo. 73, 315 P.2d 183. The constitutional question here urged was not raised in that case, but was nevertheless commented upon in the dissenting opinion filed therein, in which it is stated:
"The quoted section of the Constitution (Section 6, supra) embraces the principle of natural justice: that in a republican form of government every man should have an adequate legal remedy for an injurious wrong done to him by another. This constitutional provision is a command to the courts to be open to every person and to afford such person a remedy for injury to him by another, and that such right shall not be denied. A statute contravenes this constitutional provision which would render the court impotent to act where the injunction of the constitutional provision requires that it do act."
The dissenting opinion in Noakes v. Gaiser, supra states that other courts "have held that its intent and purpose is 'to preserve the common-law right of action for injury to person or property, and while the legislature may change the remedy or form of procedure, attach conditions precedent to its exercise and, perhaps abolish old and substitute new remedies * * *, it cannot deny a remedy entirely'." It goes on to state "In other words, the effect of the constitutional provision is this that frozen into our law are those rights to recovery for injury to person, property or character which existed at the time of the adoption of our Constitution."
The only jurisdiction in which a guest statute is now held violative of constitutional rights is Kentucky. Both the guest statute and constitution in that state are unlike their Colorado counterparts. Previously Delaware and Oregon had held then existing statutes unconstitutional, but later, as we shall show, it was held that subsequent amendments rendering the statute similar to the Colorado enactment did not contravene any constitutional rights.
If there be a constitutional provision preserving the common law right of action for injury to person or property it must be found elsewhere than in Section 6. A case in point is Pickett v. Matthews, 228 Ala. 542, 192 So. 261 where the Alabama guest statute, which is substantially identical with the Colorado statute, was held to be constitutional and not in contravention of Section 13 of the Alabama Constitution which provides "that every person, for an injury done him, in his lands, goods person, or reputation, shall have a remedy by due process of law." The Alabama court in referring to Section 13, makes the following statements:
That means that when a duty has been breached producing a legal claim for damages, such claimant cannot be denied the benefit of his claim for the absence of a remedy. But this provision does not undertake to preserve existing duties against legislative change made before the breach occurs. There can be no legal claim for damages to the person or property of anyone except as it follows from the breach of legal duty.
"Undoubtedly the right to the remedy must remain and cannot be curtailed after the injury has occurred and the right of action vested, regardless of the source of the duty which was breached, provided it remained in existence when the breach occurred. * * *
* * *
"But Section 13, supra, does not in language, nor intent, prevent the legislature from changing a rule of duty to apply to transactions which may occur thereafter. If there exist any such prohibition it must be found else where in the Constitution." (Emphasis supplied.)
A fortiori Article II, Section 6, of the Colorado Constitution provides that "Courts of Justice shall be open to every person, and a speedy remedy afforded for every injury to person, * * *." "As stated by the Alabama court" this provision does not undertake to preserve existing duties against legislative change before the breach occurs."
The common law of England was not preserved in this state by the Constitution, nor by a subsequent amendment thereto. Its application in Colorado depends upon legislative enactment, and is only of full force and effect "until repealed by legislative authority." C.R.S. '53, 135-1-1. The statutory provision is as follows:
"135-1-1 * * * Common Law of England * * * The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British Parliament, made in aid of or to supply the defects of the common law prior to * * * (the date is set forth) * * * shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority." (Emphasis supplied)
A case construing this enactment is Colorado State Board of Pharmacy v. Hallet, 88 Colo. 331, 296 Pac. 540 wherein the court stated:
"At the first session of the legislature of Colorado Territory in 1861, the common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British Parliament made in aid of or to supply the defects of the common law prior to the forth year of James I, * * * shall be the rule of decision, and shall be considered as of full force 'until repealed by legislative authority'. The statute is still in force in this state and is now a part of our statutory law (6516 C.L. 1921. The common law of England was not adopted in the state of Colorado by our constitution, as it was originally approved by the people, or by subsequent constitutional enactment. The Common law prevails in this state legislative enactment. It may be repealed, without violating our Constitution, by our general assembly at any time it chooses to do so. * * * The legislature may at any time by a legislative act, repeal any part of the common law either expressly or by passage of an act inconsistent therewith on any particular subject," (Emphasis supplied.)
Guest statutes similar to our own have been enacted in many states also having constitutional provision substantially identical with the Colorado Constitution. In all such states the guest statute has been upheld as containing no constitutional infirmities. The cases are collected and commented upon in Shea v. Olson, 185 Wash. 143, 53 P.2d 615; 186 Wash. 700, 59 P.2d 1183, 111 A.L.R. 1011, wherein it is stated at pages 1011 and 1012 of the A.L.R. annotation:
"In order to prevent fraud and collusion between gratuitous guests in motor vehicles and their owners or operators, resulting in unjustly charging automobile liability insurers for injury or death of guests, statutes have been enacted in many states relieving in varying degrees the owner or operator from liability for injury or death. Some statutes go to the extent of discharging the owner or operator from liability; others from liability for all except intentional or willful acts, and still others only from liability for injuries due to ordinary negligence. Where these statutes do not wholly deny a gratuitous guest a right of action against the owner or operator of an automobile for an injury they are generally held constitutional. (Citations.)"
See, also, the cases collected and commented upon in Harper James on Torts, Vol. 2. P. 951 at Fn. 4.
A relatively recent case sustaining the guest statute of Kansas, is Wrights' Estate v. Pizel et al. 168 Kas. 493, 214 P.2d 328. That case involved a guest statute similar to our own and it was there held that it contains no constitutional infirmities. More specifically. it was decided that the guest statute does not violate Section 18 of the Bill of Rights of the Kansas Constitution. Section 18 of the Kansas Constitution provides that "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."
The Kansas court then discusses and answers the constitutional question raised by counsel for plaintiff here.
Again, in Clark v. Storchak, 384 Ill. 564 N.E.2d 229, where it was claimed that a guest statute similar to ours was unconstitutional as violative of Section 19 of Article II of the Constitution of Illinois, which provides: "Every person ought to find a certain remedy in the law for all injuries and wrongs which he may receive in his person, property or reputation; * * *." The Illinois court after first answering many of the questions raised by counsel for plaintiff in the present case, found no constitutional infirmity in the Illinois guest statute.
See, also, Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326 (1957) upholding the Arkansas guest statute; and McMillan, et al. v. Nelson, 149 Fla. 334, 5 So.2d 867. sustaining the constitutionality of the Florida guest statute.
Counsel for plaintiff contends that the statute is unconstitutional in that it violates the due process clause of both the constitution of the State of Colorado and of the United States, and that it is special legislation limiting civil actions and thus unconstitutional.
The leading case dealing with the constitutionality of guest statutes similar to our is Silver v. Silver, 108 Conn. 371, 143 A. 240, 65 A.L.R. 943. Section 12 of the Declaration of Rights of the Connecticut Constitution reads:
"All courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
That specific provision of the Constitution was not mentioned by the court, nor was the 14th Amendment to the Federal Constitution, but there is no reason to suppose that they were not considered by the court in upholding the constitutionality of the Connecticut guest statute under the police power of the state.
The court said:
"Legislation under the police power of the state is not confined to public health, safety, or morality, but may extend to matters in the interest of the public welfare or convenience. (Citations) * * * The legislative department is the judge, within reasonable limits, to determine what public convenience and public welfare require, and the wisdom of its legislation is not the concern of the courts. It is our duty to sustain an act unless its invalidity is in our judgment beyond a reasonable doubt. (Citations.) That the state may under the police power regulate travel upon the public highways cannot be doubted. (Citations.) This includes the power to regulate the use of motor vehicles. (Citations.) 'That the regulation of motor vehicles and motor vehicle traffic is a proper subject for legislative action under the police power is not questioned.' (Citations.) Ever since motor vehicle have come into general use they have been classified separately from horse-drawn vehicles and the power of the Legislature to impose upon their owners and operators duties not placed upon others has been generally upheld. (Citations.)
"The Plaintiff's contention is that the statute makes an unreasonable classification between the guest in an automobile and the guest in any other mode of conveyance or in any other place, thus depriving him of equal protection of the law. Assuming, as we must, the power of the legislature to regulate the operation of motor vehicles, that includes the power at enact legislation affecting the reciprocal rights and duties of all who use them, owners operators or occupants, when these rights and duties arise out of such operations. The duty which the owners or operator owes to his guest in the operation of the automobiles being a legitimate subject matter of legislation, the guest is not deprived of the equal protection of the law because that duty is made to vary from that owned to a house guest or a guest in some other mode of conveyance. The basis of the classification is the automobile, and the act affects alike all those who may elect to be transported in it as guests of its owner or operator. This classification is within the wide range of discretion which the Legislature has, since it has a fair and substantial relation to the object of the legislation, which is the control or regulation of automobile traffic upon our highways. (Citations) Primarily the question of classification is for the Legislature and the courts will not interfere unless the classification is clearly unreasonable.
"The statute imposes upon the owner or operator of a motor vehicle a different degree of care toward a guest than he is required at common law to exercise toward a passenger who pays for his transportation. Such a distinction between the duty imposed in the case of the gratuitous performance of services and the performance of them for hire is to be found running through many fields of the law, as for example between the gratuitous bailee and the bailee for hire, the common carrier and the private driver, the inn-keeper and the ordinary host. In some jurisdictions it is held that the owner or operator of a motor vehicle is liable to a guest only in the case of gross negligence, in analogy to the rule prevailing in the case of a gratuitous bailment of goods. (Citations) There is inherent justice in the requirement that one who undertakes to perform a duty gratuitously should not be under the same measure of obligation as one who enters upon the same undertaking for pay, and the reason for a distinction between the measure of liability in the case of a gratuitous bailment and gratuitous transportation is not obvious. It seems to us that the Legislature was acting well within the limits of the police power in making a distinction between the degree of care to be exercised by the owner of a motor vehicle toward a guest and that to be exercised toward one who pays for his transportation. * * *" (Emphasis supplied.)
The court held the statute valid as containing no constitutional infirmities and the case was thereafter appealed to the United States Supreme Court, Silver v. Silver, 280 U.S. 117, 74 L. Ed. 221, 65 A.L.R. 939, where the judgment of the State Court was affirmed, Mr. Justice Stone delivered the opinion of the Court and stated in part as follows:
"As the record does not discloses the constitutional grounds on which the appellant challenged the validity of the statute, our review will be limited to a single question arising under the Federal Constitution which was considered in the opinion of the court below. * * * We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new right, or the abolition of old ones recognized by the common law, to attain a permissible legislative object. (Citations.)
* * *
"The use of the automobile as an instrument of transportation is peculiarly the subject of regulation. We cannot assume that there are no evils to be corrected or permissible social objects to be gained by the present statute. We are not unaware of the increasing frequency of litigation in which passengers carried gratuitously in automobiles, often casual guests or licensees, have sought the recovery of large sums for injuries alleged to have been due to negligent operation. * * * Whether there has been a serious increase in the evils of vexatious litigation in this class of cases, where the carriage is by automobile, is for legislative determination and, if found, may well be the basis of legislative action further restricting the liability. Its wisdom is not the concern of courts.
* * *
"In this day of almost universal highway transportation by motor car, we cannot say that abuses originating in the multiplicity of suits growing out of the gratuitous carriage of passenger in automobiles does not present so conspicuous an example of what the legislature may regard as an evil, as to justify legislation aimed at it, even though some abuses may not be hit. (Citations.) it is enough that the present statute strikes at the evil where it is felt and reaches the class of cases where it most frequently occurs." (Emphasis supplied.)
Several cases are cited in support of the statement that, "the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." In one, New York Central R.R. Co. v. White, 243 U.S. 188, 37 Ct. 247, 61 L. Ed. 667, sustaining the validity of the New York workmen's compensation law, the court stated:
"No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit." (Citations.)
Mountain Timber Co. v. Washington, 243 U.S. 219, 37 Ct. 260, 61 L. Ed. 685 sustained upon similar grounds the workmen's compensation act of the State of Washington.
In Munn v. Illinois, 94 U.S. 113, 24 L. Ed. 77, sustaining a statute of Illinois which fixed maximum charges for the storage of grain in public warehouses, the court said:
"But a mere common-law regulation of trade or business, may be changed by statute. A person has no property, no vested interest, in any rule of the common law. This is only one of the forms of municipal law, and is no more scared than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as rule of conduct, may be changed at the will, or even the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. * * *" (Emphasis supplied.)
Thus the highest court in our land has spoken eloquently and logically on the subject here considered.
In 111 A.L.R. 1012 the cases upholding guest statutes similar to our own are collected. That annotation lists ten states, to-wit: Arkansas, California, Connecticut, Delaware, Michigan, Nebraska, Ohio, Oregon, Taxes and Washington, whose courts of last resort have declared the then existing guest statute constitutional. To this list can be added Kansas (Wright's Estate v. Pizel, et al., 168 Kan. 493, 214 P.2d 328); Illinois ( Clarke v. Storchak, 384 Ill. 564, 52 N.E.2d 229); Florida ( McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867), and Alabama ( Pickett v. Matthews, 238 Ala. 542, 192 So. 261). Each of the latter recent cases have been previously discussed herein. Suffice it to say that each also disposed of the additional constitutional questions posed by Counsel for plaintiff herein and each relied on Silver v. Silver, supra, in holding their own guest statute constitutional.
Counsel for plaintiff rely on the case of Ludwing v. Johnson, 243 Ky. 533, 49 S.W.2d 347, wherein the Kentucky Guest Statute was held to be unconstitutional. The Kentucky act, including the title, reads:
"An act releasing owners of motor vehicles from responsibility or injuries to passengers therein.
* * *
"No person transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation shall have a cause of action for damages against such owner or operator for many injuries received, death, or any loss sustained in case of accident, unless such accident shall have resulted from an intentional act on the part of said owner or operator."
It was plaintiff's contention that the guest statute violated certain sections of the Kentucky Constitution, and was therefore unconstitutional. Prior to the enactment of the guest statute in Kentucky the rule was well settled that the driver of an automobile owned an invited guest the duty of ordinary care in its operation. Section 241 of the Constitution of Kentucky provides:
"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representation of the deceased person."
The court held that the guest statute violated the spirit and letter of the Kentucky constitution as found in Sections 14, 54 and 241, that it was the manifest purpose of the framers of the constitution to preserve and perpetuate the common-law right of a citizen injured by the negligent act of another to recover damages for his injury. No such provision can be found in the Colorado constitution.
Section 14 of the Kentucky constitution provides that all courts shall be open, that every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due process of law, and that right and justice shall be administered without sale, denial or delay. This section is substantially the same as Article II, Section 6 of the Colorado Constitution. However, as previously observed, this provision does not establish a vested right not subject to change by legislative enactment when the change in the opinion of the General Assembly is reasonably necessary. Needless to say, the Kentucky guest statute completely destroyed the common law remedy for injuries or death sustained by a guest in the automobile of another arising out of the driver's conduct. It provided a remedy only for intentional conduct. This is not the case in this jurisdiction, for the Colorado guest statute provides a remedy for negligence consisting of willful and wanton conduct and Colorado does not destroy the remedy but merely changes the degree of negligence necessary for recovery.
A recent Kentucky case, Happy v. Erwin, (Ky.) 330 S.W.2d 412 (1960) is but another example of the fundamental difference in the Kentucky constitution as compared to the Colorado constitution. That case involved a Kentucky statute providing that neither a city nor its officers or employees shall be liable in any manner in the use of fire apparatus at any point outside the corporate limits of the city. The court held that the statute violated the three sections of the Kentucky constitution previously set forth above, to-wit: sections 14, 54 and 241.
Clearly the provision of the Kentucky constitution above discussed, so dissimilar to ours, are of little value in resolving the questions presented here.
We have examined the case of Stewart v. Houk, 127 Ore. 589, 271 Pac. 998, 272 Pac. 893, 61 A.L.R. 1236, in which the Oregon Supreme Court held unconstitutional a statute of that which provided that the "acceptance of a free ride as a guest in a motor vehicle shall be presumed to be a wavier of said guest for liability of accidental injury caused by the owner or driver of such motor vehicle." The court held that this act violated Section 10, Article I of the Oregon constitution. The statute there relieved the operator from all liability. This distinguishes it from the statute here involved. Later a guest statute was enacted substantially identical with the Colorado statute, and in the case of Perozzi v. Ganiere, 149 Ore. 330, 40 P.2d 1009 it was again contended that the new statute was unconstitutional because it violated Section 10 Article 1, being the "due process" clause of the Oregon constitution. In that case the court held that the statute was constitutional, that it was clearly within the police power of the State, and that it was an attempt by the Legislature to correct what it considered to be a growing evil. The following language of the Oregon court is particularly apt here:
"Article 18, § 7 of the (Oregon) Constitution, provides: All laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed'. By the Act of June 27, 1844, the legislative committee of Oregon * * * provided in part as follows: 'The common law of England * * * shall constitute a part of the law of this land'. With reference to the foregoing provisions, this court, in (citation.), observed: 'Hence the Act of June 27, 1844. and Section 7 of Article 18 of the Constitution constitute a statutory and constitutional declaration that the common law of England, unless * * * modified by the statute of Oregon, and not incompatible with the principles of our government, shall be a part of the law of Oregon. (Citations).'
"The right to alter all laws in force in the territory of Oregon when the Constitution was adopted, whether the same were of common-law or legislative origin, was reserved to the people of the state by article 18, § 7, supra. Indeed, that section of our organic act which adopted the common law of England clearly contemplated future changes in the common law, as evidenced in the condition expressed that the common law should continue in force 'until altered or repealed'. Moreover, had it been the intention of the framers of the Constitution to adopt and preserve the remedy for all injuries to person or property which the common law afforded, they undoubtedly would have signified that intention by exact and specific wording, rather that the language used in Article 1, § 10."
* * *
"The common law is not a fixed and changeless code for the government of human conduct. Its applicability depends to a large extent upon existing conditions and circumstances at any given time. For example, as the complexity of industrial relations has increased, we have seen ingrafted on the common law the defenses of the fellow-servant doctrine, contributory negligence, and assumption of risk. Due to their harshness as directed against the workman, these common law defenses have been by legislation abolished in many of the states during the last two decades. If we were to give article 1, § 10, the construction contended for by plaintiff, we should be obliged to declare unconstitutional much of the legislation of recent years, such, for example, as the Workmen's Compensation Law, which deprives the injured workman of the remedy which he had at common law. (Emphasis supplied.)
* * *
"There was and is no constitutional inhibition against the enactment of our guest statute. It was clearly within the police power of the state for the Legislature to attempt to correct what it considered a growing evil. * * *"
We need look no further than our own statutes to find apt illustration of material change in the common law as it existed in the year 1607. In Crippen v. White, 28 Colo. 298, 64 Pac. 184, plaintiff was the owner of riparian lands prior to the adoption of the Colorado constitution and sought a decree thereafter giving him priority over certain appropriators of the water on a stream adjacent to his land. This court held that plaintiff had no claim to the waters and stated:
"The adoption of the common law by the territorial legislature of 1861 was limited to the extent that it was applicable to our conditions. The law of necessity rendered the common law doctrine of riparian rights wholly inapplicable in this jurisdiction, and as has frequently been stated, required its abrogation; so that, notwithstanding the declaration on the statute, it has never been recognized as controlling in the matter of water rights. * * *" (Emphasis supplied.)
Again in the Delaware case of Coleman v. Rhodes, 5 W. W. Harr, 120, 35 Del. 120, 159 A. 649, the Supreme Court of Delaware declared unconstitutional a statute of that state relieving the owner or operator of a motor vehicle from any liability whatsoever for injuries suffered or sustained by any person while riding with the owner or in the owner's car free of charge. The same court, in the latter case of Hazard v. Alexander, 6 W.W. Harr, 212, 36 Del. 212, 173 Atl. 517, held valid a subsequent statute which is like our own guest statute in that it provided that a guest can recover when the accident is intentional or caused by willful or wanton disregard of the rights of others.
Counsel for plaintiff next contend that the guest statute is unconstitutional for the reason that it is a special limitation restricting civil actions and thus in violation of Article V, Section 25 of our constitution, which provides in part as follows:"
"Section 25. Special Legislation prohibited. — The general assembly shall not pass local or special laws in any of the following enumerated cases, * * * for limitation of civil actions * * * granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever * * *."
Counsel cites only the dissenting opinion in Noakes v. Gaiser, supra, to support that contention, and then argues that in the instant case:
"There is no logical relation between the classification specified, and the so-called object of the legislation. Thus we feel that the classification is arbitrary and unreasonable and since the same exemption from liability does not apply to the whole class of negligent drivers, but only to those who happen to injure guest passengers, it is special legislation."
A similar question to that here suggested was raised in the Connecticut case of Silver v. Silver, supra. The Supreme Court of Connecticut said:
"The basis of the classification is the automobile and the act affects alike all those who may elect to be transported in it as guests of its owner or operator. This classification is within the wise range of discretion which the legislature has, since it has a fair and substantial relation to the object of the legislation, which is the control or regulation of automobile traffic upon our highways. (Citations) Primarily, the question of classification is for the Legislature, and the court will not interfere, unless the classification is clearly unreasonable. (Citations)" (Emphasis supplied.)
Again, in the case of McMillan v. Nelson, supra, the court, in sustaining the constitutionality of the Florida guest statute, stated:
"It is generally conceded that a classification having some reasonable basis does not offend against the Constitutional provisions supra merely because it is not made with mathematical nicety or because in practice it may result in some inequality, and also that one who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary. (Citations)."
* * *
"Our conclusion is that the classification established by the statute is neither unreasonable nor arbitrary and that it does not offend against the Constitutional provisions, supra".
The Colorado statute applies to all owners and operators of motor vehicles and their guests and none are excluded. All persons who ride as guests in such vehicles are precluded from recovering for injury, death or loss caused by the operator's ordinary negligence. The Colorado act applies alike to all persons who ride in automobiles as the guest of the owner. It does not exempt any special or particular individuals from its operation, nor deprive such individuals of a right of action. All people who accept transportation in a motor vehicle as a guest without payment are included. In this respect the principle laid down in Maitland v. People, 93 Colo. 59, 32 P.2d 116 applies:
"It is said that the defendant who is the owner of a ranch situated within the limits of the game refuge, has a hunting license; that the act makes it a crime for him to kill a deer at any time within the refuge limits, whereas his neighbors just outside the refuge who kill deer during the open seasons designated by our game laws are guiltless of any offense; that the act thus denies to the inhabitants of a certain locality the right to share equally in the privilege enjoyed by the inhabitants of other localities; and therefore that the act is a special act within the meaning of the Constitution. This objection is not sound. All persons, including the defendant, are forbidden to kill, etc. at any time, bird or animals, with certain exceptions, within the limits of a game refuge, and all persons, including the defendant, may kill, etc., at certain times, called open seasons, birds or animals outside of such limits. The act applies to all persons alike. It is not special legislation." (Emphasis supplied)
Reasons and the authorities above recited, including the highest judicial tribunal in the nation, justify our conclusion that the Colorado guest statute does not violate the "due process" clause of the Federal or Colorado Constitution, neither does it violate sections 3, 6, 14, 15 and 25, Art. II of the Colorado Constitution.
The judgment is affirmed.
MR. JUSTICE HALL and MR. JUSTICE FRANTZ dissent.