holding that Rule 35(b) one motion limit applies to both oral and written motions
How later courts described this case
- holding that Rule 35(b) one motion limit applies to both oral and written motions
- stating that “[i]t is an accepted rule of statutory construction that constitutional issues should be avoided . . . .”
- holding that the guest statute was unconstitutional but refusing to hold the ruling retroactive
- setting forth the test to be used "[i]f the classification involves a fundamental right such as the right to vote,.."
Written by the judges who cited it.
The opinion
McFADDEN, Justice
(specially concurring).
I concur in the majority opinion which quashes the alternative writ of mandate previously issued not only on the grounds stated in the majority opinion, but also in my opinion on the additional ground that the Idaho guest statute has been superceded by the statutory enactment of the comparative negligence doctrine in Idaho.
“Repeals by implication are not favored; but if inconsistency is found to exist between the earlier and the later enactments, such that the legislature could not have intended the two statutes to be contemporaneously operative, it will be implied that the legislature intended to repeal the earlier by the later enactment.” (Citations omitted). State v. Davidson, 78 Idaho 553, 559 , 309 P.2d 211, 215 (1957)
See also, Jordan v. Pearce, 91 Idaho 687 , 429 P.2d 419 (1967); Rydalch v. Glauner, 83 Idaho 108 , 357 P.2d 1094 (1960); Golconda Lead Mines v. Neill, 82 Idaho 96 , 350 P.2d 221 (1960). The Idaho guest statute was first enacted in 1931, and it was most recently amended in 1963. The *26 comparative negligence statutes became law in 1971.
Idaho’s comparative negligence provision consists of the following two statutes:
“[I.C. § 6-801 ^-Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence or gross negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.”
“[I.C. § 6-802 :]-The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering.”
As discussed in the majority opinion, the Idaho guest statute bars an automobile guest’s negligence cause of action but allows actions based on gross negligence or intoxication. It appears that the legislature contemplated that at least the gross negligence portion of the guest statute would still operate after passage of the comparative negligence provision because I.C. § 6-801 makes two references to gross negligence. The question in this action is not whether the legislature intended to repeal the guest statute by enactment of the comparative negligence statute, but whether the guest statute and comparative negligence are sufficiently ■ inconsistent that it must be held that the guest statute has been superceded by enactment of comparative negligence.
Before comparative negligence was adopted in Idaho it was held that contributory negligence on the part of a plaintiff was a complete bar to recover, no matter the degree of contributory negligence. Comparative negligence expands the right to recovery by barring a plaintiff on the grounds of contributory negligence only when it exceeds the defendant’s negligence. The guest statute bars an automobile guest’s negligence action and is inconsistent with comparative negligence by limiting recovery.
The inconsistency between the guest statute and comparative negligence is also apparent in cases involving a plaintiff-guest’s claim of gross negligence against a defendant-driver who counterclaims that the plaintiff-guest was contributorily negligent. First, the jury must find that the defendant-driver was guilty of gross negligence to allow recovery. Secondly, the jury is faced with comparing the gross-negligence of the defendant-driver with the contributory negligence of the plaintiff-guest, and is required to assign degrees of fault to each. Comparing gross negligence and ordinary negligence is similar to comparing apples and oranges, making impossible a meaningful allocation of fault by the jury.
In my opinion the Idaho guest statute is inconsistent with the statutes enacting the comparative negligence doctrine in Idaho. The Idaho guest statute was first enacted in 1931, and the comparative negligence statutes were enacted in 1971. When two acts of the legislature dealing with the same subject-matter are necessarily inconsistent, the latter enactment prevails over the earlier. Herrick v. Gallet, 35 Idaho 13 , 204 P. 477 (1922); Little v. Nampa-Meridian Irrig. Dist., 82 Idaho 167 , 350 P.2d 740 (1960); Jordan v. Pearce, 91 Idaho 687 , 429 P.2d 419 (1967).
DONALDSON and BAKES, JJ., concur.