# Motion to Dismiss — Acs v. Brady > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0355%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss - **Published:** January 1, 1976 - **Citation:** 429 U.S. 803 ## Text 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- e 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. ii 2 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 3 “(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. 4 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 7 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) 8 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 10 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 11 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 12 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. 13 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 14 dismissed and for all other proper relief. John M. Heeter Charles E. Johnson Marshall E. Williams HEETER, JOHNSON, SALB & WILLIAMS 1060 Consolidated Building 115 North Pennsylyania Street Indianapolis, Indiana 46204 (317) 636-5561 Counsel for Appellee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0355%3A2. Public record. Not legal advice.