Manistee Bank & Trust Co. v. McGowan ( 1975 )

Levin, J.

An act of the Legislature provides that the owner of an automobile driven with permission is subject to liability if it is negligently driven and causes damage to property or injury or death to a person. The act further provides that neither the owner nor a driver is liable for injury or death caused a guest passenger by negligent driving.¹

The act expressly permits a guest passenger, along with everyone else, to recover for grossly negligent driving. But this does not save the classification if it is otherwise unreasonable. To tell a person who cannot prove gross negligence, but can prove ordinary negligence, that he could have recovered if he had been able to prove gross negligence is not much different than consoling a marooned person with the thought that if he had wings he could fly.

The question before us is whether this statutory exception to the general rule of common law and statutory liability for negligent driving deprives a guest passenger of due process and equal protection of the laws under the state or Federal Constitutions.

Mardelle Williams was killed as a result of an accident which occurred while she was a guest passenger in an automobile owned by defendant Pamame and driven by defendant McGowan.

Before trial, the plaintiff, administrator of the estate of Mardelle Williams, moved to strike tljiat portion of the answer relying on the guest passenger exception claiming that it violates the due process and equal protection clauses.² The trial court denied the motion because it felt "bound by the doctrine of stare decisis and the guest passenger act has heretofore been held to be constitutional in the State of Michigan.”

In his opening statement, the lawyer for Pamame and McGowan admitted that McGowan was guilty of ordinary negligence. The jury returned a verdict of no cause of action.

This Court granted leave to appeal prior to decision by the Court of Appeals.

We hold the guest passenger exception unconstitutional as violative of the Equal Protection Clause of the Michigan Constitution (Const 1963, art 1, § 2) and reverse and remand for trial on the question of damages.

I

Guest passenger statutes were enacted in about half the states during the 1920’s and 1930’s.³

Connecticut, in 1927,⁴ was the first state to enact a guest statute⁵ and, in 1937, the first state to repeal its guest statute.⁶

In 1929 Michigan enacted a guest statute⁷ which this Court held constitutional in 1931. Naudzius v Lahr, 253 Mich 216; 234 NW 581; 74 ALR 1189 (1931).

No state has enacted a guest statute since 1939.⁸

Despite substantial criticism in the courts as well as academia,⁹ these statutes withstood constitutional attack until the California Supreme Court, in Brown v Merlo, 8 Cal 3d 855, 882; 106 Cal Rptr 388, 407; 506 P2d 212, 231 (1973), held that the California guest statute violates the equal protection guarantees of the state and Federal Constitutions for the reason that "the classifications which the guest statute creates between those denied and those permitted recovery for negligently inflicted injuries do not bear a substantial and rational relation to the statute’s purposes of protecting the hospitality of the host-driver and of preventing collusive lawsuits”.

Since the Brown decision, a number of states have considered the constitutionality of their guest statutes. Kansas,¹⁰ North Dakota¹¹ and Idaho¹² have held their guest statutes unconstitutional. Texas,¹³ Iowa,¹⁴ Utah,¹⁵ Delaware,¹⁶ Oregon,¹⁷ Colorado,¹⁸ and South Dakota¹⁹ declined to follow the California lead; the Delaware Court said that elimination of a guest statute is more properly within the realm of legislative action.²⁰

II

There are two principal problems in judicial review under the Equal Protection Clause: The role of the courts in constitutional adjudication and the test to be applied. The questions of what role and which test are interrelated. The choice of test is frequently determinative of the judicial role.

It has been argued that judicial amendment or abrogation of the guest passenger exception is inappropriate and' that the Legislature is the proper forum for the necessary inquiries and deliberations.

All agree that the power of the Legislature is not without limits. "[TJhat those limits may not be mistaken, or forgotten, the Constitution is written.” Marbury v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803). And that those limits not be exceeded, the courts are entrusted with the responsibility to review and the power to nullify legislative acts which are repugnant to the constitution.²¹

The question when and how actively a court should exercise its power of constitutional review has engendered vigorous debate.²²

It has been said that "legislatures exist to decide the wisdom of statutes, courts exist to decide their constitutionality.”²³ That the legislative solution appears undesirable, unfair, unjust or inhumane does not of itself empower a court to override the legislature and substitute its own solution.²⁴ A legislative classification need not be drawn with "mathematical nicety”;²⁵ "rough accommodations —illogical, it may be, and unscientific” will do.²⁶ Statutes are cloaked with a presumption of constitutional validity. The burden of rebutting that presumption is on the person challenging the statute.

One can accept the philosophy of judicial restraint which lies behind "rules” explicating the heavy burden that must be borne by one who assails the constitutionality of a presumptively valid and incontestably wise statute, and still recognize "the responsibility of the courts to strike the statute” where "the legislature’s judgment of the wisdom of a statute is shown to conflict with a constitutional limitation on legislative power”.²⁷

Justice Harlan was of the opinion that all equal protection questions²⁸ should be resolved applying the standard of rationality. He found "nothing which entitles this court to pick out particular human activities, characterize them as 'fundamental,’ and give them added protection under an unusually stringent equal protection test”. His rejection of the fundamental interest characterization reflected his insistence on judicial restraint lest the Court become a "super-legislature”.²⁹

Notwithstanding Justice Harlan’s views, the United States Supreme Court developed a twotiered³⁰ approach to equal protection cases.

If the interest is "fundamental” or the classification "suspect”, the court applies a "strict scrutiny” test requiring the state to show a "compelling” interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.³¹

Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it”.³² A classification will stand unless it is shown to be "essentially arbitrary”.³³ Few statutes have been found so wanting in "rationality” as to fail to satisfy the "essentially arbitrary” test.³⁴

It has been noted recently that the United States Supreme Court, under a "revitalized” traditional equal protection test, has found a number of social and economic statutes unconstitutional.³⁵

Professor Gunther sees in a group of cases decided during and preceding the 1971 term of Court an emerging new standard of equal protection which he calls "means scrutiny”. He suggests that the Court, expanding on the "rational basis/compelling state interest” dichotomy, appears to be willing to take a moderately activist position without invoking the "strict scrutiny” formula.

Relying on the traditional equal protection test, the California, Idaho, Kansas, and North Dakota³⁶ Supreme Courts held their guest passenger statutes unconstitutional; the Supreme Courts of Texas, Iowa, Utah, Delaware, Oregon, Colorado, and South Dakota, relying on the same standard, reach the opposite result.

One commentator explains the apparent inconsistency by suggesting that there are really two traditional equal protection standards— Dandridge³⁷ and Reed³⁸ — and "the test selected will predetermine the result the court will reach”.³⁹ The Dandridge "any conceivable state of facts” standard⁴⁰ literally precludes analysis of the classification and will not support a finding of unconstitutionality, while the Reed "fair and substantial relation to the object of the legislation” standard invites the court to examine and determine whether the classification bears a real relation to the perceived purposes.

This Court has employed the fair-and-substantial-relation-to-the-object-of-the-legislation test, dubbed "means scrutiny” by Gunther, in some recent cases where acts of the Legislature have been found unconstitutional:

"Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation?” Alexander v Detroit, 392 Mich 30, 35; 219 NW2d 41 (1974). (Emphasis supplied.)

"In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found.” Fox v Employment Security Commission, 379 Mich 579, 588; 153 NW2d 644 (1967). (T. M. Kavanagh, J., Justices Black, Soukis and Brennan concurring.) (Emphasis supplied.)

"This diverse treatment of members of a class along the lines of governmental or private tortfeasors bears no reasonable relationship under today’s circumstances to the recognized purpose of the act.” Reich v State Highway Department, 386 Mich 617, 623; 194 NW2d 700 (1972). (Emphasis supplied.)

A commentator writes that the California Supreme Court "applied a somewhat redefined standard of equal protection — a standard requiring a 'realistic’, rather than merely a 'legitimate’, state purpose which is substantially, rather than merely rationally, supported by the classification system set up by the legislature. * * * The Court in Brown refused to attribute to the legislature a 'theoretically "conceivable”, but totally unrealistic, state purpose that might support this classification scheme’ * * * (Emphasis in original.)⁴¹ In short, the California Supreme Court approached its reviewing function in the manner Professor Gunther identifies as "means scrutiny” or "equal protection bite without 'strict scrutiny’ ”.⁴²

Whatever label⁴³ is attached to the analysis— whether traditional equal protection, Dandridge test, Reed test, means scrutiny, or "a complete and realistic balancing of interests”⁴⁴ — "the governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guaranty that controls the reasonableness of governmental action”.⁴⁵ The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation.

What is reasonable is in each instance a matter of judgment. In the final analysis, it is a value judgment and should be recognized as such. "Whether the court upholds or invalidates a statute, the court is making policy, making value judgments.” (Emphasis supplied.)⁴⁶

So, too, is the choice of test a matter of judgment. In my judgment, at least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.

Judicial deference to the Legislature is premised in part upon the perceived need for experimentation, especially in social and economic matters.

"[T]he Equal Protection Clause does not require that a state must choose between attacking every aspect of a problem or not attacking the problem at all.”⁴⁷

The guest passenger statutes have operated for 45 years to deny a discrete group — guest passengers — recovery for death, injury or loss caused by ordinary negligence. They have been criticized, amended, repealed, whittled away and struck down.

A court can no longer properly view the guest statutes as but the first experimental step in a legislative scheme designed eventually to require, for example, that gross negligence be shown before any person can recover for injuries suffered in an automobile accident.

Where a classification scheme creates a discrete exception to a general rule and has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound.

It is understandable that a court reviewing what may be "experimental” legislation would say, as did this Court in Naudzius, "[pjerhaps the legislature also had other reasons for the law”. Where, however, it can no longer be claimed that the legislation is experimental, where all possible rationales have been developed, a court should not dismiss a constitutional challenge on that hypothesis.

III

Two principal justifications have been offered to support guest statutes: The protection of hospitality and the elimination of collusive lawsuits.

Accepting, arguendo, that these are valid purposes, it remains necessary even under the traditional rational basis test to determine whether the classification scheme worked by the guest statute is reasonable. It is not enough merely to suggest possible legislative purposes. A court must examine whether there is some relation between the classification and those purposes and — assuming there is some relation — whether it is reasonable.

IV

This Court in Naudzius said that "collusion, perjury and consequent fraud” is one of the principal evils against which this legislation is directed. Guest passengers are often friends or relatives of the driver. Since the real defendant in an action by an injured guest is generally not the driver, but his insurance company, it is assumed that the driver might "cooperate” with his injured guest to prove negligence.

There may indeed be incentive for collusion where the injured person is a friend or relative. However, to deprive the entire class of guest passengers of protection against negligently inflicted injury or death because some members of the class may be friends and relatives and a collusive lawsuit may be brought "presents a classic case of an impermissibly overinclusive classification scheme, that is, a scheme in which a statute’s classification 'imposes a burden upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims’ ”.⁴⁸

In this case it is conceded that McGowan was guilty of ordinary negligence. This plaintiff is denied recovery solely because of a statute which is defended as necessary to prevent collusion to establish that which is here conceded.

Not infrequently the defendant driver is hostile to the plaintiff guest passenger and offers evidence in opposition to recovery. In other cases, he has no evidence to offer — he may be dead. In any such case, collusion is but a remote possibility.

Assuming that some drivers are willing falsely to admit negligence to enable some of their guests to recover against their insurance companies, they might be as willing falsely to admit gross negligence.

That there are other protections against the perceived evil of collusion between friendly litigants has been recognized by a number of states, including Michigan, which have abolished inter-spousal and intra-family immunity.⁴⁹

Friends and acquaintances of the litigants are the most frequent witnesses in almost every case. We depend upon the judicial process to ferret out non-meritorious claims.

Witnesses are subject to rigorous examination before the trier of fact. Those who testify falsely run the risk of penalties for perjury. In most personal injury cases, the insurance company represents the insured and will vigorously defend against liability. Insurance policies usually require the insured to cooperate with his insurer.

Conceding, arguendo, that there is a higher risk of collusion in guest passenger cases, it is disproportionate, and therefore unreasonable, to bar recovery in the large generality of cases (where collusion is not present or will not succeed) to forestall a few successful frauds.

Another evil perceived by this Court in Naudzius was that "some passengers who solicit rides may manufacture claims for liability”.⁵⁰

A commentator states that "[apparently, the series of guest statutes passed in the late 1920’s and 1930’s were a legislative response to the public’s outcry over a series of widely publicized cases in which hitchhikers sought exorbitant damages from their unsuspecting host”.⁵¹

Prosser, unable to find any evidence of these widely publicized cases, rejects the hitchhiker thesis.⁵²

Whatever the viability in 1931 of the asserted purpose to protect generous motorists from the false claims of hitchhikers, there is no evidence of this danger today.

"Although by straining our imagination we could possibly derive a theoretically 'conceivable,’ but totally unrealistic, state purpose that might support this classification scheme, we do not believe our constitutional adjudicatory function should be governed by such a highly fictional approach to statutory purpose.”⁵³

This Court in Naudzius stated that "[i]t is well known that drivers hesitate to take neighbors for a ride or to assist on his way a weary traveler because of potential liability for injuries”.⁵⁴

It has been suggested that because under guest passenger statutes drivers are not exposed to liability for ordinary negligence, they are more willing to offer rides to guests, thus reducing fuel consumption and the number of automobiles on the road.

In response, it might be argued that because drivers are insulated from liability for their negligence, each person drives his own car rather than be a "guest”, and fuel consumption remains high.

In point of fact, the presence or absence of a guest statute does not affect the decision of friends and relatives to ride together in an automobile. Drivers may hesitate to pick up hitchhikers, but not because of potential liability for negligence, ordinary or gross. Friends and relatives offer, seek, accept, or decline rides with each other for reasons quite apart from the ability to recover for negligently inflicted injury, death or loss. It is only after the fortuitous event of an accident that the existence of the statute becomes known to most people. The absence of a guest passenger statute would not chill hospitality or group transportation any more or less than its existence promotes such activity.

Even if the state did have an interest in protecting drivers from the "ingratitude” of friends, relatives or weary travelers, most automobiles today are insured.⁵⁵ In several states, like Michigan, automobile insurance is mandatory. The analogy to the proverbial ingratitude of the dog that bites the hand that feeds him is inapposite. An injured guest does not evidence "ingratitude” by suing the driver’s insurance company.⁵⁶

Another "possible reason” for the guest statute has been suggested "in the purse of the motor owning public”.⁵⁷ The argument is that guest passenger statutes limit liability and reduce litigation, thereby allowing insurance companies to offer coverage at lower rates.

The guest passenger statute may have reduced the number of recoveries, but whether it has reduced litigation is not clear.

The statute provides that guests transported in a motor vehicle cannot recover against the owner or operator absent a showing of gross negligence or wilful and wanton misconduct.⁵⁸

Plaintiffs, defendants, and their insurers expend considerable time and money litigating whether plaintiff was a "guest” being "transported” in a motor vehicle and if so, whether his injuries were caused by "gross negligence or wilful and wanton misconduct”.

Conceding, arguendo, that insurance rates are lower because there is a guest statute,⁵⁹ lower insurance premiums do not, without more, justify an essentially arbitrary classification.

If persons injured on Thursdays or men between 50 and 60 years of age were denied recovery for ordinary negligence, there would be assurance of less litigation, fewer recoveries, and the possibility of lower insurance rates. Nevertheless, all would agree that such classifications would be struck down as "arbitrary” despite the relief afforded "the purse of the motor owning public”.

It may be legitimate for the Legislature to intervene in the increasing costs of automobile insurance. But the means selected by the Legislature to do so must be reasonably related to the object sought to be attained. Denying guest passengers recovery for ordinary negligence is no more⁶⁰ reasonably related to the objective of lower insurance rates than would be denying recovery to persons injured on Thursdays or men between 50 and 60 years of age.

Guest passengers as a class are not better able to bear the cost of lower premiums for the motor owning public. As a class, they are not necessarily all wealthy nor do they necessarily all have especial sources of recovery. Those who do not have other sources of recovery are forced to exhaust their own resources and may become public charges.

The purpose asserted here — lower rates from private insurance companies — is to be distinguished from efforts to control the cost of governmental benefit programs.

Because there are innumerable interests competing for a share of the public purse which is chronically depleted, courts are prone to defer to governmental decisions reflected in experimental legislation regarding disbursement of public entitlements. But it is not settled that even the effort of government to reduce costs and protect the public fisc is a sufficient justification for selecting a discrete class for disparate treatment. That question is a subject of heated debate in welfare litigation. It would appear that many United States District Courts do not accept cost as a sufficient justification.⁶¹ And the United States Supreme Court in Dandridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970), while adverting to the state’s fiscal problems in its opinion, rested its decision to uphold Maryland’s maximum grant system on other grounds.⁶²

What then is left to justify the classification (1) between nonpaying passengers and paying passengers in the same automobile and (2) between nonpaying passengers and pedestrians, drivers of and passengers in other cars, and owners of property?

This Court, in an opinion written by Justice Talbot Smith, previously recognized the "irreconcilable conflict between the provisions of the [guest statute] and the principles and traditions of the common law, the customs and convictions of our people”.⁶³ Justice Smith described the operative effect of the guest statute:

"The friends of the driver, his family * * * must suffer injury at his hands without recompense, solaced only by the thought that, after all, the skull was cracked by a friendly hand. * * * Why? Because the relationship between them was one of trust and friendship. No money had changed hands. If, however, not the neighbor himself is carried to town, but rather his livestock to the slaughterhouse, many modern courts will permit full recovery for injury to the unfortunate animal through failure to use reasonable care for its safety. Is this one answer of an enlightened people to the hallowed question: 'How much then is a man better than a sheep?’⁶⁴ (Emphasis supplied.)

Justice Smith posed the question of the reasonableness of the guest passenger exception, but in sustaining plaintiffs verdict was not called upon to decide this question.

Courts should proceed cautiously and should defer to legislative judgments which are reasonable. The Legislature must be free to experiment without being required to attain "mathematical nicety” in its formulation of remedies to social and economic problems.

In declaring the guest passenger statute unconstitutional, however, none can say that this Court has not paid due deference to the legislative judgment. Michigan’s 45-year-old guest statute is no longer an experiment. It is now our responsibility to examine carefully the proffered purposes and determine whether they are reasonable and, if so, whether the guest classification bears a substantial relation to them. After the experience of 45 years, we are no longer content to require guests to bear the entire cost of their negligently inflicted injuries because "[p]erhaps the legislature also had other reasons for the law”.

To deny guests recompense for negligently inflicted injury, death or loss cannot be justified as a reasonable means to promote hospitality, foster gratitude, prevent collusion, perjury or fraud, reduce insurance premiums, or protect generous drivers from "vexatious litigation”⁶⁵ by ungrateful guests or conniving hitchhikers.

We hold the guest passenger exception unconstitutional and remand for trial on the question of damages.

T. G. Kavanagh, C. J., and Williams, J., concurred with Levin, J.

1 "Provided, however, That 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 caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.” MCLA 257.401; MSA 9.2101.

2 Plaintiff alleged that the guest passenger statute is "in violation of the due process clause and equal protection clause of the Fourteenth Amendment of the Constitution of the United States and Article I, Section 2 and Article I, Section 17 of the Constitution of the State of Michigan of 1963, in that the Guest Act makes an unreasonable and arbitrary distinction, without any reasonable basis in fact or in law, as to the liability of an owner and driver for injuries and damages sustained by a 'guest passenger’ in the owner’s or driver’s motor vehicle and all other persons injured by the negligence of the owner or driver”.

3 2 Harper & James, Torts, § 16.15, p 950 et seq.; Prosser, Torts (4th ed), § 34, p 186.

4 Iowa also enacted a guest statute in 1927. In Keasling v Thompson, 217 NW2d 687 (Iowa, 1974), the Iowa Supreme Court upheld the constitutionality of the statute in a 5-4 decision.

5 In Silver v Silver, 280 US 117, 122, 123; 50 S Ct 57; 74 L Ed 221; 65 ALR 939 (1929), the United States Supreme Court held that Connecticut’s guest statute did not violate the equal protection clause of the Fourteenth Amendment.

The classification examined in Silver was not the distinction between those passengers who pay and those who do not, but rather “between gratuitous passengers in automobiles and those in other classes of vehicles”.

The Court held that the classification was a reasonable one because "[t]he use of the automobile as an instrument of transportation is peculiarly the subject of [state] regulation”.

The question whether the distinction between guests and paying passengers is a reasonable one was not decided by the Court in Silver and Silver was distinguished on that ground in Brown v Merlo, 8 Cal 3d 855, 863-864, n 4; 106 Cal Rptr 388, 393-394, n 4; 506 P2d 212, 217-218, n 4 (1973), and Thompson v Hagan, 96 Idaho 19, 23-24; 523 P2d 1365, 1369-1370 (1974).

6 Conn Gen Stat § 540E (Supp, 1939).

7 1929 PA 19.

8 Florida repealed its guest statute in 1972. Law of Feb 14, 1972, ch 72-1, § 1, [1974] Fla Laws, repealing Fla Stat Ann § 320.59 (1968).

Illinois amended its guest statute to apply only to hitchhikers. Ill Ann Stat, Ch 95 1/2, § 10-201 (Smith-Hurd Cum Supp, 1975).

Texas amended its statute to limit "guests” to relatives in the second degree of consanguinity or affinity. Law effective Sept 1, 1973, ch 28, § 3 Tex Gen Laws, 63d Legislature, amending Tex Rev Civ Stat, Art 6701b (1969).

In 1965, ten states unsuccessfully attempted to repeal their guest statutes. In 1967, seven others also failed to garner the necessary support.

23 Drake L Rev 216, 218, fn 16 citing ABA Special Comm on Automobile Reparations, Report 86 (1969).

9 "See e.g., Prosser, Law of Torts (4th ed. 1971) section 34, pages 186-187; Lascher, Hard Laws Make Bad Cases — Lots of Them (The California Guest Statute) (1968) 9 Santa Clara Law. 1; Gibson, Guest Passenger Discrimination (1968) 6 Alberta L. Rev. 211; Note, The Case Against the Guest Statute (1966) 7 Wm. & Mary L. Rev. 321; Note, Problems of Recovery under the Iowa Guest Statute (1962) 47 Iowa L. Rev. 1049; Pedrick, Taken for a Ride: The Automobile Guest and Assumption of Risk (1961) 22 La. L. Rev. 90; Comment, The Illinois Guest Statute: An Analysis & Reappraisal (1959) 54 Nw. U. L. Rev. 263; Tipton, Florida’s Automobile Guest Statute (1958) 11 U. Fla. L Rev. 287; Mundt, The South Dakota Guest Statute (1957) 2 So. Dakota L. Rev. 70; White, The Liability of an Automobile Driver to a Non-Paying Passenger (1934) 20 Va. L. Rev. 326; Clark v Clark (1966) 107 N.H. 351, 356-357 [222 A.2d 205, 210]; Cohen v Kaminetsky (1961) 36 N.J. 276, 283 [176 A.2d 483, 487]; Stevens v Stevens (1959) 355 Mich. 363 [94 N.W. 2d 858]; Hewlett v Schadel (4th Cir. 1934) 68 F.2d 502.” Brown v Merlo, fn 5 supra, fn 22.

See, additionally, Note, The Present Status of Automobile Guest Statutes, 59 Cornell L Rev 659 (1974); Note, Guest Statutes: Have Recent Cases Brought Them to the End of the Road?, 49 Notre Dame Lawyer 446 (1973); Comment, Equal Protection Challenges to Automobile Guest Statutes, 8 Creighton L Rev 432 (1974); Comment, Judicial Activism in Tort Reform: The Guest Statute Exemplar and a Proposal for Comparative Negligence, 21 UCLA L Rev 1566 (1974); Recent Cases, Constitutional Law — Guest Statute Violates Equal Protection of the Law, 50 ND L Rev 139 (1973); Note, Torts — California Guest Statute Unconstitutional Denial of Equal Protection, 23 Drake L Rev 216 (1973).

10 Henry v Bauder, 213 Kan 751, 756; 518 P2d 362, 367 (1974).

The Kansas Supreme Court reviewed decisions interpreting the guest statute and found "a crazy-quilt pattern of application of the guest act which permits recovery in many factual situations and denies recovery in others. Some of these decisions clearly show the inequities of the statute and the resulting denial of equal justice to persons similarly situated”.

We agree that "unequal treatment” arising from inconsistent judicial interpretations of the statute is not a ground for voiding the statute. Such analysis is judicial bootstrapping.

11 Johnson v Hassett, 217 NW2d 771 (ND, 1974).

12 Thompson v Hagan, fn 5 supra.

13 Tisko v Harrison, 500 SW2d 565 (Tex Civ App, 1973). Texas has since the Tisko decision amended its guest statute. See fn 8.

14 See fn 4.

15 Cannon v Oviatt, — Utah 2d —; 520 P2d 883, 886 (1974).

16 Justice v Gatchell, 325 A2d 97 (Del, 1974).

17 Duerst vLimbocker, — Or —; 525 P2d 99 (1974).

18 Richardson v Hansen, — Colo —; 527 P2d 536 (1974).

19 Behrns v Burke, — SD —; 229 NW2d 86 (1975).

20 Justice v Gatchell, fn 16 supra.

21 Whether or not compelled by the logic of Marbury, the conclusion that the courts do have a role to play in constitutional review of legislative acts is by now well-supported by experience and universally accepted.

22 Bickel, The Least Dangerous Branch (Bobbs-Merrill Co, Inc, 1962); Wright, Professor Bickel, The Scholarly Tradition and The Supreme Court, 84 Harv L Rev 769 (1971); Linde, Judges, Critics and the Realist Tradition, 82 Yale L J 227 (Í972); Shaman, The Rule of Reasonableness in Constitutional Adjudication: Toward the End of Irresponsible Judicial Review and the Establishment of a Viable Theory of the Equal Protection Clause, 2 Hastings Const LQ 153, 174 (1975).

23 Keasling v Thompson, fn 4 supra, 700 (dissent).

24 Dandridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970).

25 Lindsley v Natural Carbonic Gas Co, 220 US 61, 78; 31 S Ct 337, 340; 55 L Ed 369, 377 (1911).

26 Metropolis Theatre Co v Chicago, 228 US 61, 69-70; 33 S Ct 441, 443; 57 L Ed 730, 734 (1913).

27 Keasling v Thompson, fn 4 supra, 700.

28 "Except with respect to racial classifications, to which unique historical considerations apply * * * .” Dandridge v Williams, fn 24 supra, 489.

29 Shapiro v Thompson, 394 US 618, 661-662; 89 S Ct 1322, 1346; 22 L Ed 2d 600, 631 (1969).

30 See Note, Developments in the Law: Equal Protection, 82 Harv L Rev 1065 (1969), for a comprehensive discussion of the two-tiered approach.

31 See fn 30 and Gunther, Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1 (1972).

32 Dandridge v Williams, fn 24 supra, 485.

33 Lindsley v Natural Carbonic Gas Co, fn 25 supra.

34 From 1941 to 1970, the United States Supreme Court found economic legislation to violate the equal protection clause in only one case, Morey v Doud, 354 US 457; 77 S Ct 1344; 1 L Ed 2d 1485 (1957). Note, Developments, fn 30 supra, 1087.

35 Gunther, fn 31 supra.

36 The North Dakota Supreme Court struck down its guest statute as violative of the state constitutional guarantee of equal protection of the laws. The analysis was similar to traditional equal protection.

37 “If the classification has some 'reasonable basis,’ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ * * * 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” Dandridge v Williams, fn 24 supra, 485.

38 “A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation ***.’” Reed v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971).

39 Comment, Equal Protection Challenges to Automobile Guest Statutes, 8 Creighton L Rev 432, 447 (1974).

40 Based on Lindsley v Natural Carbonic Gas Co, fn 25 supra, and used in Naudzius v Lahr, 253 Mich 216, 223; 234 NW 581; 74 ALR 1189 (1931): "Can a state of facts be conceived which would form a reasonable basis for the classification at bar?”

41 Comment, Judicial Activism in Tort Reform: The Guest Statute Exemplar and a Proposal for Comparative Negligence, 21 UCLA L Rev 1566, 1567-1568 (1974).

42 Gunther, fn 31 supra, 12.

43 Polonius: "What do you read, my lord?”

Hamlet: "Words, words, words.”

Hamlet, Act H, Scene 2, thanks to Comment, The Ohio Guest Statute, 22 Ohio St LJ 629, 637 (1961).

44 Shaman, fn 22 supra.

45 Schwartz, Constitutional Law (MacMillan Co, NY, 1972) p 288.

46 Shaman, fn 22 supra.

47 Dandridge v Williams, fn 24 supra, 486-487.

48 Brown v Merlo, fn 5 supra, 876, quoting Tussman & tenBroek, The Equal Protection of the Laws, 37 Cal L Rev 341, 351 (1949).

49 See Hosko v Hosko, 385 Mich 39; 187 NW2d 236 (1971), and MCLA 600.2001; MSA 27A.2001; Prosser, Torts (4th ed), § 122, p 859 ff.

50 Naudzius vLahr, fn 40 supra, 224.

51 Note, Torts — California Guest Statute Unconstitutional Denial of Equal Protection, 23 Drake L Rev 216, 217 (1973).

52 Prosser, Torts (4th ed), § 34, p 187, n 8.

53 Brown v Merlo, fn 5 supra, 865, fn 7.

54 Naudzius v Lahr, fn 40 supra, 224.

55 It has been estimated that in the late 1920’s, when most guest statutes were enacted, about 20% of automobile drivers carried insurance. In 1973, it was estimated that nearly 85% were insured. 23 Drake L Rev, fn 9 supra, 222, fn 59. Brown v Merlo, fn 5 supra, 868, fn 10.

In Michigan, under no-fault, all automobiles must be insured.

56 Brown v Merlo, fn 5 supra, 867.

57 Naudzius v Lahr, fn 40 supra, 224.

58 See fn 1.

59 In Comment, The Ohio Guest Statute, 22 Ohio St L J 629 (1961), a study is noted which concludes there is no direct relationship between insurance rates and the presence or absence of a guest statute.

It is questionable whether different rates can be attributed to any one factor.

60 It is arguable that denying guests recovery for ordinary negligence is less related to the objective of lower insurance rates.

Assuming that some drivers are willing falsely to admit negligence to enable some of their guests to recover against their insurance companies, there is no reason to believe they would have the same incentive falsely to admit liability merely because the person, including the driver of the other car, his guests and pedestrians, is injured on a Thursday or is a man between 50 and 60 years of age.

61 The Court in Green v Department of Public Welfare, 270 F Supp 173, 177 (D Del, 1967), stated that the economic interest of the state, "no matter how worthy in the abstract, is not a permissible basis for differentiating between persons who otherwise possess the same status in their relationship to the State * * * ”.

Similarly see Dews v Henry, 297 F Supp 587, 592 (D Ariz, 1969); Westberry v Fisher, 297 F Supp 1109, 1114-1115 (D Me, 1969); Williams v Dandridge, 297 F Supp 450, 458 (D Md, 1968), rev’d 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970); Harrell v Tobriner, 279 F Supp 22 (D DC, 1967); Thompson v Shapiro, 270 F Supp 331 (D Conn, 1967), alFd 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969). Dienes, To Feed the Hungry: Judicial Retrenchment in Welfare Adjudication, 58 Cal L Rev 555, 605-606 (1970).

62 "It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor.” Dandridge v Williams, fn 24 supra, 486.

63 Stevens v Stevens, 355 Mich 363, 369; 94 NW2d 858 (1959).

64 Stevens v Stevens, fn 63 supra, 370-371, quoting from Matt 12:11 and 12, Authorized Version.

65 Silver v Silver, fn 5 supra, 123.