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Delany v. Badame





APPEAL from the Circuit Court of Lake County; the Hon. L. ERIC CAREY, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT: This case involves the constitutionality of the Illinois guest statute. Ill. Rev. Stat. 1967, ch. 95 1/2, par. 9-201.

On the night of August 22, 1963, Anthony Badame, age 16, was driving his father's motor vehicle upon a rural country road. He was accompanied by Philip Delany, a minor, and Samuel Gray. The road was level, and the surface was treated gravel. The weather was clear, and there were no obstructions to vision. The vehicle, while negotiating a curve, slid off the road and into a tree injuring the plaintiff, Philip Delany. The original action in the circuit court of Lake County involved additional defendants and additional counts. However, this appeal is only concerned with the count of the complaint which charged the driver with ordinary negligence, which count was dismissed, and with the wilful and wanton count against the driver upon which the jury returned a verdict of not guilty.

The plaintiff in his brief and argument assails the constitutionality of the guest statute of this State, and the propriety of denying plaintiff's motion for judgment notwithstanding the verdict of the jury on the issue of liability, and charges that the conduct of the trial was so prejudicial to the plaintiff as to justify a new trial.

Plaintiff contends that the guest statute is unconstitutional because of the grant of special immunities, that it is in violation of the police power of this State, and in violation of due process of law under the Illinois and United States constitutions. Many cases are cited from Illinois and other jurisdictions, and the parties have filed a joint brief purporting to give the holdings in all jurisdictions in the United States where the constitutionality of guest statutes has been considered.

We have previously considered and upheld the constitutionality of our guest statute (Clarke v. Storchak (1944), 384 Ill. 564.) However, plaintiff insists that this court did not therein consider the constitutional questions raised on this appeal.

Plaintiff claims the statute is in violation of section 22 of article IV of the Illinois constitution which prohibits the General Assembly from passing local or special laws in certain cases, including granting to individuals any special or exclusive privilege, immunity or franchise. Plaintiff claims the guest statute grants to the owner or operator of a motor vehicle a special immunity in violation of section 22 article IV of the Illinois constitution. To this challenge we shall address ourselves. Cases arising under this section of our constitution hold that classification of subjects or objects must be based on some reasonable and substantial difference in kind, situation, or circumstance bearing proper relation to purposes to be attained by the statute. (Joseph Triner Corp. v. McNeil (1936), 363 Ill. 559, 104 A.L.R. 1435, affirmed in McNeil v. Joseph Triner Corp., 299 U.S. 183, 81 L.Ed. 109.) We have also held that there is always a presumption that the General Assembly acted conscientiously, that the court will not interfere with its judgment unless classification is clearly unreasonable and palpably arbitrary, and that all reasonable doubts are to be resolved in favor of upholding the validity of a statute. City of Danville v. Industrial Com. (1967), 38 Ill.2d 479.

Plaintiff relies upon Harvey v. Clyde Park District (1965), 32 Ill.2d 60, in which case we held unconstitutional a statute which granted immunity from tort liability to park districts holding, in effect, that it was a special immunity to disallow a recovery to a person injured in one taxing district, who might be similarily injured in another nonimmune taxing district. We shall distinguish Clyde Park District later in this opinion. Plaintiff hypothesizes instances of a minor being injured in different tort situations. Where he is injured as a guest passenger in an automobile, or airplane, he must prove wilful and wanton conduct, but if he is injured in the same situation in a motorboat, or while a social guest in a home, he can recover on simple negligence. He also cites illustrations that the owner or operator is no different than many other classes of persons against which a claim for negligence can be based, such as the manufacturer, seller, distributor, etc. However, this does not make our guest statute an improper classification. The classification in our statute, except as judicially construed as to minors, applies to all guests. It is for the protection of the owner or operator of the motor vehicle. In Summers v. Summers (1968), 40 Ill.2d 338, we said at page 341: "* * * each of these cases recognizes that guest statutes were enacted primarily to protect those who gratuitously transport others in their automobile." The primary purpose of the statute is to protect the interest of those who gratuitously extend the hospitality of their motor vehicles.

Both sides have cited Silver v. Silver (1928), 108 Conn. 371, 143 A. 240, affirmed (1929) in 280 U.S. 117, 74 L.Ed. 221, 50 S.Ct. 57. This case arose in Connecticut where a guest passenger sued the driver for negligence. Their statute provided that guests did not have a cause of action unless the accident was intentional, heedless or reckless. A directed verdict resulted, and the question of classification was considered by the Supreme Court of Connecticut, and went to the Supreme Court of the United States upon the proposition of the denial to the plaintiff of the equal protection of the laws guaranteed by the fourteenth amendment.

The Connecticut Supreme Court (108 Conn. 371, 378, 143 A. 240, 243) disposed of the question of classification by stating that ever since motor vehicles have come into general use they have been classified separately, and that 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. * * * Primarily the question of classification is for the legislature, and the courts will not interfere unless the classification is clearly unreasonable." Citing People v. Sisk, 297 Ill. 314.

The rationale of Silver v. Silver has been followed by the courts of ten other States which have considered the constitutionality of guest statutes requiring proof of wilful and wanton conduct, and in all such States, the act has been held constitutional as not granting a special immunity nor making an improper classification. See, Arkansas: Roberson v. Roberson (1937), 193 Ark. 669, 101 S.W.2d 961, "wilful and wanton"; Colorado: Vogts v. Guerrette (1960), 142 Colo. 527, 351 P.2d 851, "intentional, intoxication or wilful and wanton"; California: Ferreira v. Barham (1964), 230 Cal.App.2d 128, 40 Cal.Rptr. 739, "intoxication or wilful conduct"; Delaware: Gallagher v. Davis (1936), 37 Del. 380, 183 A. 620, "intentional wilful or wanton"; Kansas: Wright's Estate v. Pizel (1950), 168 Kan. 493, 214 P.2d 328, "gross wanton negligence"; Ohio: Smith v. Williams (1935), 51 Ohio App. 464, 1 N.E.2d 643, "wilful or wanton misconduct"; Oregon: Perozzi v. Ganiere (1935), 149 Or. 330, 40 P.2d 1009, "intentional or gross negligence or intoxication"; South Carolina: Fulghum v. Bleakley (1935), 177 S.C. 286, 181 S.E. 30, "intentional or heedless"; Texas: Campbell v. Paschall (1938), 132 Tex. 226, 121 S.W.2d 593, "intentional or heedless"; and Washington: Shea v. Olson (1936), 185 Wn. 143, 53 P.2d 615, "intentional or gross negligence or intoxication".

There are guest statutes in Idaho, Indiana, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, Vermont and Wyoming, but no cases involving the constitutionality of the statute. The only States which have apparently denied the constitutionality of guest statutes have been Arkansas, Delaware, Kentucky and Oregon, but Delaware and Oregon later amended their acts which were subsequently held constitutional. (See cases from these jurisdictions cited above.) In Arkansas: Emberson v. Buffington (1957), 228 Ark. 120, 306 S.W.2d 326, and in Kentucky: Ludwig v. Johnson (1932), 243 Ky. 533, 49 S.W.2d 347, both acts were held unconstitutional because they denied any cause of action to a guest passenger.

In Illinois the guest statute does not preclude a cause of action to the injured party but changes the degree of fault necessary for a recovery from that of the common law. This is different from the statute involved in Harvey v. Clyde Park District relied upon by the plaintiff. In that case the statute denied any cause of action to the injured party.

American Jurisprudence has summarized the guest statutes of all jurisdictions in the following language: "The so-called `guest' statutes which merely limit the liability of the owner or operator of a motor vehicle toward his gratuitous guest by requiring a degree of negligence or misconduct greater than ordinary negligence as a condition of the liability of the owner or operator for injuries to such a guest, but which do not wholly deny a gratuitous guest a right of action against the owner or operator of a motor vehicle, have generally been held constitutional. Such statutes are generally sustained as a reasonable exercise of the police power of the state to conserve human life and safety, provided the guest is not deprived of all remedy for a justiciable injury. Such statutes have been held constitutional as against objections that they deny one of due process of law, a remedy at law, or access to the courts; that they deny equal protection of the laws; violate equal privileges and immunities provisions; infringe vested rights; or violate provisions relating to the judicial powers of the state, or with respect to damages or the constitutional right to trial by jury." 8 Am.Jur.2d, Automobiles and Highway Traffic, sec. 472.

Plaintiff also contends that the guest statute violates the due process clause of the State and Federal constitutions. This point was directly passed on in Clarke v. Storchak, 384 Ill. 564, where it was stated at page 579: "The `guest statute' does not violate the `due process' clause of the Federal constitution, nor sections 2 or 19 ...

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