Motion to Dismiss — Acs v. Brady

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rc Supreme Court, U. $.

FILED

AUG 26 1976

[wont RODAK, JR.,CLERK

IN THE

SUPREME COURT of the UNITED STATES

October Term, 1976

No. 76-127

CARMEN ACS, Administratrix of the Estate

of Santiago Lazaro, Decceased,

Appellant,

vs.

RICHARD BRADY,

Appellee.

On Appeal From The Indiana

State Supreme Court

MOTION TO DISMISS

Heeter, Johnson, Salb & Williams

John M. Heeter

Charles E. Johnson

Marshall E. Williams

1060 Consolidated Building

Indianapolis, Indiana 46204

(317) 636-5561

Counsel for Appellee

STIS

TABLE OF CONTENTS

| A I aD 1

1. HISTORY OF THE CASE ........................ 2

Il. THIS APPEAL DOES NOT PRESENT

A SUBSTANTIAL FEDERAL QUESTION 3

Ill. THERE IS NO SUBSTANTIAL QUESTION

Pm Bt) | + re 4

IV. THERE IS NOSUBSTANTIAL QUESTION

AS TO EQUAL PROTECTION QW... 6

a TUN ea ica at ascelisdsntasiinchioasiniecniceniciie 6

B. THE CLASIFICATION IS

ER ICS EE 7

C. THE GUEST STATUTE HAS A

RATIONAL RELATIONSHIP TO A

LEGITIMATE GOV’T. PURPOSE ... 8

V. CONCLUSION AND PRAYER

NE Wisi ceeneciseeheaceciiiaiicalecinnsen 13

TABLE OF AUTHORITIES

Cases

Brady v. Acs, ...... Ind. ....... 342 N.E. 2d 837

GAS SOE ae aeRO dae TIER 3

Cannon v. Oviatt, ...... Utah ....... 520 P. 2d 883

(1974), App. Dism’d 419 U.S. 810, 42

L. Ed. 2d 37, 95 S. Ct. 24, reh. den.

419 U.S. 1060, 42 L. Ed. 2d 658, 95

I cae 4

Dandridge v. Williams, 397 U.S. 471, 25

L. Ed. 2d 491, 90S. Ct. 1153 (1970) _... fasten 6,8

-j-

ee ss

Dempsey v. Leonherdt, .. ... Ind. ....... 341 N.E. IN THE |

pe EE Ne ee eae 2,3, 8 |

; ' ™ SUPREME COURT of the UNITED STATES

Johnson v. Robison, 415 U.S. 361, 39 L. Ed. October Term, 1976

2d 389, 94 S. Ct. 1160 (1974) 00. eee, 6 ,

Massaletti v. Fitzroy, 228 Mass. 487, 118 | _

N.E. 168 (1917) 3st g ! No. 76-127

McGowan v. Maryland, 366 U.S. 420, 6 L. Ed.

4 Onno 8

New York Central R. Co. v. White, 243 U.S. CARMEN ACS, Administratrix of the Estate

188, 61 L. Ed. 667, 37 S. Ct. 247 (1917) .......... a of Santiago Lazaro, Decceased,

Railway Express Agency, Inc. v. People of

the State of New York, 366 U.S. 106, Aopemm.

93 L. Ed. 533, 69 S. Ct. 463 (1949) Ss ail 7 sae

Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d RICHARD BRADY,

225, 92S. Ct. 251 (19M) on. Sines 6 abhapcorctas Appellee.

Sidle v. Majors, ...... Ind. ....... 341 N.E. 2d | On Appee! From The Indiana

RRS Se tO a EI RE SS eT sladiatindeahl , ¥

State Supreme Court

Silver v. Silver, 280 U.S. 117, 50S. Ct. 57, 2 = ata

74 L. Ed. 221 (1929) ......... naihielout aii 3, 5, 9 MOTION TO DISMISS

White v. Hughes, 257 Ark. 627, 519 S.W. 2d | |

70 (1975), App. Dism’d. ..... U.S. ......, 46 | The Appellee moves the Court to dismiss the appea

L. Ed. 2d 26, RENCE tases: “Sesdnonnecppecbiana ieee + herein - the following erounds:

1. This appeal does not present a substantial

Federal question ;

29. The Federal question sought to be reviewed was

not expressly passed on in this ease.

I. HISTORY OF THE CASE

-The Appellant herein sued to recover damages for

the death of her decedent who was killed while m, : at

passenger’ in the Appellee’s-automobile. The Indiana

Guest Statute (set forth in the Appellant’s Jurisdic-

tional Statement, p. 3) denies guest passengers (non-

paying passengers) recovery, for personal injury or

death, against the host unless the host was guilty of

wanton or wilfull misconduct.

_ The Trial Court held the Guest Statute unconstitu-

tional and directed a verdict for the Plaintiff (Appell-

ant herein) on the issue of liability on the basis of

simple negligence.

The Defendant (Appellee herein) appealed to the

Indiana Supreme Court. In such appeal, Appellee

moved for consolidation with the pending appeals of

Dempsey v. Leonherdt, ...... Ind ._., 341 NE 2d 763

(1976) and Sidle v. Majors, ...... I , 341 NE 2d

763 (1976). The Motion to Consolidate was denied.

In those cases, (set forth in the Jurisdictional State-

ment, Exhibit A), decided February 16, 1976, the

Indiana Supreme Court held the Guest Statute to be

constitutional. On March 4, 1976, the Indiana Supreme

— I pg My a —— in this case. It’s decision

Ss based on its earlier holding in D , -

herdt, supra. It stated: , ett Sate

BEST COPY AVAILABLE

“(1) The issue raised by this appeal has been resolv-

ed by our disposition of the identical issue in Dempsey

vy. Leonherdt (Green), Ind., 341 N.E. 2d 763 handed

down February 16, 1976. In that case, we upheld the

guest statute against federal and staté constitutional

challenges of denial of due process and equal protec-

tion of the law.”

Brady v. Acs, ...... Ind. ....... 342 N. E. 2d 887, (1976)

Thus, the constitutional issues were not decided in

our case. What the Appellant herein is attempting to

do, in fact, is to appeal the decision in Demsey v.

Leonherdt, supra., wherein this Appellee was not a

party, and which has not been appealed

to this Court. *1

Il. THIS APPEAL DOES NOT PRESENT A

SUBSTANTIAL FEDERAL QUESTION.

In Silver v. Silver, 280 US 117, 508. Ct. 57, 74 L. Ed.

221 (1929), this Court held that a Guest Statute,

virtually indentical to the Indiana Statute concerned

herein. did not violate the United States Constitution.

It stated:

“The use of the automobile as an instrument

of transportation is peculialy the subject of

regulation.... Weare not unaware of the

increasing frequency of litigation in which

passengers carried gratuitausly in automobiles,

often casual guests or licensees, have —

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

*1 Counsel for the Appelant (plaintiff below) herein was also

Counsel for the Plaintiff in Dempsey v. Leonherdt.

is for legislative determination and, if found,

may well be the basis of legislation further

restricting the liability. Its wisdom is not

the concern of Courts.”

Silver v. Silver, 280 US, at 122-128

741 Ed at 229

This Court has recently dismissed two appeals which

attempted to raise the same issues as Appellant does

herein, i.e. the constitutionality of state automobile

Guest Statutes, on the grounds that there was no sub-

stantial Federal question.

Cannon v. Ovialt,.. Utah ~ “

920 P2d 883, (1974) App. Dismissed

419 U.S. 810, 42 L Ed 2d 37,

95S. Ct. 24 reh. den., 419 U.S. 1060

42 1. Fd 2d 658, 95 S Ct. 645

White v. Hughes

257 Ark 627, 519 SW24d 70, ( 1975)

\pp. Dismissed... U.S.

16 L. Fd 2d 26... S Ct...

’

iif. THERE IS NOSUBSTANTIAL QUESTION

AS TO DUE PROCESS.

Appellant attempts to make a due process argument

by contending that the Guest Statute creates an “irre-

buttable presumption that every ‘Guest Case’ will

lower the quantum of hospitality in the state, will

involve collusion, and will raise insurance premiums.”

(Jurisdictional Statement, p. 17) This argument is

(specious). The Statute creates no presumption, re

buttable or otherwise. It may be based on a legislative

opinion that guest cases have such undesirable effects.

statute does not create any presumptions and

io ao due process of law. It simply —

the common law remedy for negligence in Y° aut

mobile guest situation to reduce the degree of care.

This is not unconstitutional.

“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.

Silver v. Silver, supra.

280 U.S. at 122

74 L. Ed. at 225

; es ° , Her 11" f

“negligence is merely the disi egard )

some duty imposed by law and the penere ane

extent of the duty may be modified by legis —

with corresponding change in the test of negli-

gence.”

N.Y. Central R. Co. ve. White

243 U.S 188, 198

61 1. Ed. 667,

37S. Ct. 247, 250 (1917)

i i . i has

enacting the Guest Statute, the Legislature !

pe A. modified the nature and extent of the hq > »

the standard of care, owed by an automobi e og Ae

his non-paying guest. This does not violate t ¢

Process Clause of the United States Constitution. uly

enacted legislation is Due Process of Law.

IV. THERE IS NOSUBSTANTIAL QUESTION

AS TO EQUAL PROTECTION

_Appellant also contends that the Statute unlawfully

discriminates against a class of persons, i. e. vehicle

passengers who are non-paying guests of the driver.

Appellant’s argument is that there is no rational cen-

nection between payment for the ride and any legiti-

mate governmental purpose.

Appllant also argues that, if there was such a ration-

al connection when the statute was originally enacted

(1929), it no longer exists because of changed social

conditions.

A. The Test. The standard of review is wether or

not the legislative classification is reasonable and

bears a fair and substantial relation to a legitimate

government purpose.

Johnson v. Robison

415 U.S. 361, 94S. Ct. 1160,

39 L. Ed 2d 389 (1974)

Reed v. Reed ..

404 U.S. 71, 92S. Ct. 251

30 L. Ed. 2d 225 (1971)

In Dondridge v. Willaims, 397 U.S. 471,

905. Ct. 1153, 25 L. Ed. 2d 491 (1970)

this Court said:

“In the area of ecunoniics and social welfare,

a State does not violate the Equal Protection

Clause merely because the classifications made

by its laws are imperfect. If the classification

has some “reasonable basis” it does not offend

the Constitution simply because the classifica-

tion “is not made with mathematical nicety or

because in practice it results in some

incyuality.” Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 78, 55 L. Ed. 369, 377,

3158S. Ct. 337. “The problems of government are

practical ones and may justify, if they do not

require, rough accommodations--illogical, it may

he, and unscientific.” Metropolis Theatre Co.

v. City of Chicago, 228 U.S. 61, 69-70, 57

L. Ed. 730, 734, 33 S. Ct. 441. “A statutory

discrimination will not be set aside if any state of

of facts reasonably may be conceived to justify it

discrimination will not be set aside if any state o

facts reasonably may be conceived to justify it.”

McGowan v. Maryland, 366 U.S. 420, 426,

6 L. Ed. 2d 393, 399, 81S. Ct. 1101.”

(25 L. Ed. 2d at 501-502, Emphasis added)

B. The Classification is Reasonable. The class

created by the statute in this case, is guests who are

being transported in motor vehicles without payment

therefor. i. C. 9-3-3-1 (Jurisdictional Statement, p. 3).

The distinction made by the statute between paying

and non-paying passengers is inherently reasonable.

What is arbitrary or capricious about saying that one

who pays for a service or accommodation is entitled to

a higher duty of care than one who receives its grat-

uitously. In Railway Express Agency, Inc. v. People

of the State of New York, 366 U.S. 106, 69 S. Ct. 463,

93 -" Ed 533 (1949) Justice Jackson (concurring)

stated:

—_

“Certainly the presence or absence of hire

has been the hook by which much highway reg-

ulation has been supported.” (69 S. Ct. at 468)

In Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E.

168 (1917) the Supreme Court of Massachussetts

arrived at the same rule of law as is legislatively creat-

ed by the Guest Statute in holding that a gratuitous

passenger could not recover from his host except on

proof of “gross negligence” as opposed to mere negli-

gence.

Justice Arterburn, concurring in Dempsey v. Leon-

herdt, supra, did so on the basis of the common law

distinction which imposed a higher duty of care on a

paid bailee, such as a warehouseman or carrier, than

on a gratuitous bailee. There is nothing irrational in

using payment as the basis of distinction.

C. The Guest Statule Has a Relationship to a Legit-

imate Goverment? Purpose. If there is any conceivable

purpose to justify the statutory classification, the act

must be upheld.

Dandridge v. Williams, supra

McGowan v. Maryland

366 U.S. 420 818. Ct. 1101

63. Ed 2d 395

In Dempsey v. Leovherdt, supra the indiana Su-

preme Court mentiened three likely purposes that the

legislatur may have been seeking to promote. They

ure: (1) the protection and promotion of hospitality,

(2) the elimination of collusive or vexatious lawsuits,

and (3) the protection of liability insurors. The first

two purposes have been recognized in virtually all of

the cases in which Guest Statutes have been upheld.

The third is equally logical.

Most of the Appellant’s argument herein, and indeed

the’ rationale of those cases in which Guest Statutes

were struck down, is that the means utilized, i. e.

denial of a right of action for negligence, are unsuited

to accomplish the purpose. Or, that other means might

accomplish it better. What the Appellant is seeking to

do is have the Court review the wisdom of the legisla-

tire. But that is not the function of the Court in an

Equal Protection case.

“Its (the legislation) wisdom is not the

concern of the Courts.”

Silver v. Silver, supra

As a matter of fact, what could be more reasonable

than to place the added burden on the guest. The occu-

pant of another car has no opportunity to control the

host driver or to protect himself. The guest passenger

is uniquely situated in that respect. If the host is driv-

ing unsafely, the guest can protest, or even abandon the

vehicle. What is unreasonable about requiring him to

do so. If the guest knows he can’t recover except for

gross misconduct, isn’t he likely to be more motivated

to exercise precautions to prevent an injury? We sub-

mit that this is a sufficient legislative purpose in itself.

Appellant’s argument that times have changed so

that the legislative determination made in 1929 is no

longer valid is erroneous. The great increase, both in

motor vehicles and in liability insurance, only makes

the Guest Statute more

meaningful. The obsolesence argument is especially

inappropriate in the case of the Indiana Statute. The

encouragement of hospitality has current validity and

vitality a legislative purpose in Indiana.

In the 1975 session of the Indiana General Assembly,

a hill was introduced to repeal the Guest Statute, being

House Bill 1107. It was defeated 62 to 34. Thus. the

enactment in question must be regarded as current

legislation. In view of the fact that it was considered

and voted upon last year, the opponents of the Guest

Statute cannot rationally contend that: “Times have

changed,” or “That the circumstances which existed

when it originally passed, no longer exist.”

Let us instead look at the times and circumstances

when it was last under consideration by the legislature.

In February, 1975, the legislature met in the after-

inath of what was the Country’s first and worst fuel

crisis since World War II. In the previous year, this

Country had suffered an oil embargo from the oil pro-

ducing contries of the Middle East. The result was

shortages of fuel throughout the Country. Many and

varied efforts were made to conserve energy and re-

duce the consumption of fuel. Filling stations closed

on weekends. In some parts of the Country, they were

compelled to close during the week. The filing stations,

+ ~estue

i PIS ee

in some instances, limited their sales to ten (10) gal-

lons per person. In some areas of the Country, there

were long lines at filling stations on the certain days

when fuel was available. Millions were spent, and are

being spent, in search of new reservoirs of fuel. Addi-

tional millions are being spent in search for ways to

conserve the use of fuel, such as by utilizing solar

energy.

In 1974 the speed limit was reduced nationwide to

55 miles per hour. Fuel rationing was seriously con-

sidered and ration books were printed by the Federal

Government.

During the crisis, government agencies and public

service groups constantly and vociferously urged the

public to form car-pools and to “share the ride’, as

was done during World War II. They are still doing so.

All of these circumstances and considerations were

very much in the minds of the legislature and the miuds

of the public when the legislature met in 1975.

The court must assume that when the legislature

was in session and considered repeal of the Guest Stat-

ute, it was aware of the recent cases in other states

holding similar statutes unconstitutional. It must have

been aware of the reasoning upon which they had ruled.

Presumably, also, it was aware of the numerous states

which had upheld Guest Statutes. But, by far the most

important circumstances of which the legislature had

to be aware was the need in this country to find means

for the conservation of fuel. One of these means, long

recognized and advocated, was to share the ride by car-

pooling and otherwise.

Let us consider the logical effect of the provisions

of the Guest Statute. Isn’t it obvious that an automo-

bile owner protected by the Statute would be more

willing to sharing the ride, such as by driving a car-

pool to and from work? The Courts. have judicially no-

ticed the fact that most automobile owner's have liabil-

ity insurance. This is one factor which has been advo-

cated us destroving the rationality of distinguishing

between autemobile hosts and other social hosts. (See

Jurisdictional Statement, p. 8) But the fact is, that

the availability of such insurance does not make an

automobile owner all that carefree about carrying

others. The Court must also judicially know that in the

event claims ave made against him by injured passen-

gers, and settlements made or judgment awarded

against him, which the insurance carrier has to pay,

the host is faced with an increase in premium or can-

cellation of such insurance. Once he has suffered can-

cellation, it is both difficult and more expensive for him

to obtain insurance for some period of time in the

future. There is also the prospect of having a judgment

in excess of his insurance limits which he himself

would have to pay. The removal of these prospects can-

not help but be a strong motovation encouraging him

to carry passengers and help the conservation of fuel.

We cannot see how this reasoning can be seriously

disputed.

Thus, it is apparent that there is a legitimate gov-

ernment purpose to be effeted, and that such purpose

was one of those which had to be foremost in the minds

f the legislature when it rejected the bill to repeal

the Guest Statute. It is also clexr that the provisions of

the Guest Statute bear a rational relationship to ful-

fillment ov promotion of the governmental purpose.

Therefore, the classification of automobile hosts and

guests is a reasonable one, and the Statute does not

violate the Equal Protection clause of the United

States Constitution.

V. CONCLUSION AND PRAYER FOR RELIFF

The constitutionality of the Indiana Guest Statute

wars not expressly decided in this case. The decision

wis made in Dempsey v. Leonherdt which was not

appealed.

There is no substantial Federal question presented by

this appeal. The Guest Statute creates a reasonable

classification which bears 2 rational relation to a legit-

imate governmental objective.

WHEREFORE, Appellee prays that this appeal be

dismissed and for all other proper relief.