Pass v. Kanell ( 1940 )

Whether the allegations of the complaint are sufficient to state a cause of action against appellants, Burton A. Anderson and Drive It Yourself Company, is the only question presented upon this appeal.

The point is raised because a general demurrer to the complaint was overruled by the trial court and is preserved for review on this appeal by a single assignment stating that the trial court committed error in overruling the demurrer of Burton A. Anderson to plaintiff's complaint.

Judgment went against all the defendants upon the negligence of Kanell, who rented from Anderson an automobile while Anderson was operating a Drive It Yourself Company business.

The demurrer and the assignment of error raise the constitutionality of Sec. 22, Chap. 43, Laws Utah 1933. Respondent concedes that if the act or the part of the act attacked is unconstitutional no liability attaches to appellant Anderson.

Burton A. Anderson, one of the defendants and appellant, was engaged in the business of furnishing motor vehicles without drivers to persons desiring to rent such vehicles and desiring to drive them themselves. Anderson rented to his codefendant Nick Kanell an automobile without a driver. While Kanell was driving the automobile he backed it upon the infant son of plaintiff, inflicting injuries from which the child died. Upon trial the jury found Kanell negligent and rendered a verdict against both Kanell and Anderson; the former because of his negligence and the latter upon the claimed statutory liability for his failure to carry, or cause to be carried, public liability insurance as required by Sec. 22, Chap. 43, Laws Utah 1933.

Appellant's contention is that the complaint of respondent does not state a cause of action against appellant unless it relies upon Sec. 22, Chap. 43, Laws Utah 1933.

Two points are raised attacking the validity of the section referred to: (a) that the subject is not clearly expressed in the title, and (b) that the act contains more than one subject.

The title of Chap. 43, Laws Utah 1933, is as follows:

"Motor Vehicle Registration "An Act to Require the Registration of Motor Vehicles, Trailers and Semitrailers and to Require the Payment of Fees Thereupon and to Require Report to Be Made of Any Accident Involving a Vehicle and to Impose Certain Duties and Obligations Upon the Owners of Motor Vehicles Rented Without Drivers, and to Prevent the Taking, Transfer of or Injury to Any Vehicle Without the Consent of the Owner; To Provide for a Department of Motor Vehicles and Its Powers and Duties Hereunder; to Regulate Court Procedure in Certain Civil Actions Arising Under This Act; to Provide Penalties for Violations of This Act and to Make Uniform the Law Relating to the Subject Matter of This Act."

Before passing to the discussion relating to the subject matter of the act, let us examine the title and compare it with the title of the act as amended and re-enacted by Chap. 46, Laws Utah 1935:

"Motor Vehicles "An Act Relating to Motor Vehicles, Trailers and Semitrailers, the Ownership Thereof and Other Interests Therein; and to Provide for the Registration Thereof and the Issuance of Certificates of Title Therefor Upon Payment of Certain Fees; and to License Persons in the Business of Wrecking Such Vehicles or Dealing in Such Vehicles or Parts Thereof; and to Protect Owners of Such Vehicles Against Theft, Embezzlement or Other Loss Thereof; and Providing for the Administration and Enforcement of Motor Vehicle Laws by a Department of Motor Vehicles; and Imposing Penalties for Violations of This Act; and to Make Uniform the Law Relating to the Subject Matter of This Act; and Repealing Chapters 1, 2, 3, 5, 6, 9 and 11, Title 57, Revised Statutes of Utah, 1933; and Chapters 43 and 44, Laws of Utah, 1933, and All Other Acts or Parts of Acts in Conflict With the Provisions of This Act."

It is not suggested that because the Legislature recast the title when the law was re-enacted and amended that it was a confession on the part of the Legislature that the 1933 title was necessarily erroneous; but the recast title with the omission of the "duties and obligations" put upon owners of motor vehicles without drivers leads one to suspect that a discovery might have been made. The comparison of titles makes it evident that the title of the repealed statute was erroneous.

The first question suggesting itself is: What is the subject matter of the act? The answer is: "The Registration of Motor Vehicles." This, without question, is the subject matter about which and within which the other detailed 1 subject matter must be included. If the bill is responsive to the title and does not contain more than one subject it must be limited to "Registration of Motor Vehicles."

The title may be condensed and labeled (a) An act to require the registration of motor vehicles (b) to impose certain duties and obligations upon the owners of motor vehicles rented without drivers (c) provide for a department of motor vehicles (d) regulate court procedure in certain civil actions arising under this act and (e) provide penalties.

Had the subject matter of the act been designated "An Act Relating to Motor Vehicles," as was done when the act was amended and re-enacted, and the provision for insurance of drive-it-yourself business omitted, we would have a different question.

We agree with the statement of this court in the case of UtahState Fair Ass'n v. Green, 68 Utah 251, 249 P. 1016, 1025, that generally the title of an act is not objectionable if it is sufficient to give notice of the general subject matter of the legislation contained in the act, and of the interests likely to be affected. "The title was never intended to be an index to the law." The rules therein set forth are applicable to the instant case. Referring to the case of Edler v. Edwards, 34 Utah 13,95 P. 367, the following quotation is made therein:

"The courts are, however, unanimous with respect to the following general rules to be observed: (1) That the constitutional provision now under consideration should be liberally construed; (2) that the provision should be applied so as not to hamper the lawmaking power in framing and adopting comprehensive measures covering a whole subject, the branches of which may be numerous, but where all have some direct connection with or relation to the principal subject treated; (3) that the constitutional provision should be so applied as to guard against the real evil which it was intended to meet; and (4) that no hard and fast rule can be formulated which is applicable to all cases, but each must to a very large extent be determined in accordance with the peculiar circumstances and conditions thereof, and that the decisions of the courts are valuable merely as illustrations or guides in applying these general rules. Moreover, it is now established beyond question that unless the invalidity of a particular law in question is clearly and manifestly established the law must prevail as against such an objection. If, therefore, by any reasonable construction, the title of the act can be made to conform to the constitutional requirement, it is the duty of the courts to adopt this construction rather than another (if the title be open to more than one construction) which will defeat the act. 1 Lewis' Suth. Stat. Const. (2d Ed.) §§ 115-127, and cases there cited. In case of doubt it must be assumed that the Legislature understood and applied the title so as to comply with the constitutional provision, and not contrary thereto. If, after applying such a reasonable construction the title is insufficient, or the subject is plural, then the law must fail. The provision is mandatory, and may not be ignored."

The unanimity of the law and the reasonableness of the rules of construction above stated require the acceptance of the conclusion reached. We may agree with what the law is and still find divergent views as to the applicability of it to a given set of facts. "Horse racing" and "pari-mutual betting" to some minds may be one subject, to another two. Registration of automobiles and ownership of and liability for negligence of a rent driver, to some may be one subject. To us it is at least two.

The subject matter of the title is "Registration of Motor Vehicles" and is limited. Had the title been broadened to "An Act Relating to Motor Vehicles" etc., the scope of the title and the subject matter that might have been included would have been sufficiently broad to include "Registration of Motor Vehicles." The subject matter is stated, "Registration of Motor Vehicles," with the details added, and may not be broadened by construction to include matters other than those related to registration. An act relating to the breeding of horses could not by construction be made to include breeding of foxes, but an act relating to breeding of animals would include both.

A title to an act does not purport to state the details but it must be broad enough to include the 2 subject of the legislation.

Sec. 22, Chap. 43, Laws Utah 1933, reads: 3

"(a) The owner of a motor vehicle engaged in the business of renting motor vehicles without drivers, who rents any such vehicle without a driver to another, otherwise than as a part of a bona fide transaction involving the sale of such motor vehicle, permitting the renter to operate the vehicle upon the highways, and who does not carry or cause to be carried public liability insurance in an insurance company or companies approved by the insurance commissioner of this state insuring the renter against liability arising out of his negligence in the operation of such ren[t]ed vehicle in limits of not less than $5,000 for any person injured or killed and $10,000 for any number more than one injured or killed in any one accident and against liability of the renter for property damage in the limit of not less than $1,000 for one accident, shall be jointly and severally liable with the renter for any damages caused by the negligence of the latter in operating the vehicle and for any damages caused by the negligence of any person permitted to operate the vehicle by the person renting the same and with the express or implied permission of the owner. The foregoing provisions shall not confer any right of action upon any passenger in any such rented vehicle as against the owner, but nothing herein contained shall be construed to prevent the introduction as a defense of contributory negligence to the extent to which such defense is allowed in other cases. Such policy of insurance shall insure to the benefit of any person permitted to operate the vehicle by the person renting the same and with the express or implied permission of the owner in the same manner and under the same conditions and to the same extent as to the renter. The insurance policy or policies above referred to need not cover any liability incurred by the renter of any vehicle to any passenger in such vehicle.

"When any suit or action is brought against the owner of a for rent motor vehicle upon a joint and several liability under this section, it shall be the duty of the judge or court before whom the case is pending to cause a preliminary hearing to be had in the absence of the jury for the purpose of determining whether the owner has provided or caused to be provided insurance covering the renter in the limits above mentioned. Whenever it appears that the owner has provided or caused to be provided insurance covering the renter in the sums above mentioned, it shall be the duty of the judge or court to dismiss as to the owner the action brought under this section.

"(b) It shall be unlawful for the owner of any motor vehicle engaged in the business of renting motor vehicle without driver, to rent a motor vehicle without a driver, otherwise than as a part of a bona fide transaction involving [sic] the sale of such motor vehicle, unless he shall have previously notified the department of the intention to so rent such vehicle and shall have complied with the requirements as to the showing of his financial responsibility as provided in section 9(c) of this act.

"(c) Whenever the owner of a motor vehicle rents such vehicle without a driver to another it shall be unlawful for the latter to permit any other person to operate such vehicle without the permission of the owner."

We fail to discover anything in the title "Registration of Motor Vehicles" that would justify the inclusion of liability of owners of rent automobiles for negligence of the drivers of such rented automobiles.

If that part of the title relating to the imposing of certain duties and obligations upon owners of motor vehicles rented without drivers could be said to be properly included in the title "Registration of Motor Vehicles" which we think it cannot, there would still be nothing in the title to apprise one that unless he carries public liability insurance protecting anyone against the negligence of such renting driver he would be personally liable.

There are matters included in the statute which we think make it duplicatus. It contains subject matter not clearly expressed in the title and is therefore violative of Section 23, Article VI of the Constitution of the State of Utah, providing,

"Except general appropriation bills, and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title."

The law here under discussion having been repealed makes the instant case important only as to the parties involved, yet the principles of law remain the same.

The statute is invalid and the judgment of the trial court is reversed. Costs to appellant.

LARSON, J., concurs.