Plaintiff sues for medical expenses incurred for treatment of injuries to his minor son sustained when the son was riding as a guest in an automobile driven by defendant. The parties stipulate that defendant was not guilty of gross negligence. Our questions are whether the guest statute, Tex.Rev.Civ.Stat.Ann. art. 6701b (Vernon 1969), bars the parent's claim as well as the son's, and if so, whether it deprives automobile guests generally of equal protection of the laws. We hold that it does bar the parent's claim and that it does not deny equal protection. Accordingly, we affirm a summary judgment for defendant.
1. Applicability of guest statute
Article 6701b provides:
Plaintiff contends that the cause of action for his son's medical expenses is his own rather than his son's, and that it is not within the literal language of the statute because he was not himself a "person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest." Consequently, he argues, he may base his recovery on ordinary negligence although the statute would deny recovery to his son under the facts stipulated.
This argument overlooks the requirement that a parent's recovery for consequential damages resulting from injury to a child must be based on a legal wrong to the child. No legal wrong is done to the child without breach of a duty to the child. Failure of the owner or operator to use ordinary care for the safety of a guest is not a breach of duty to the guest because the statute absolves him of that duty by limiting his liability to intentional misconduct or gross negligence. Thomas v. Southern Lumber Co., 181 S.W.2d 111 (Tex.Civ.App., Waco, 1944, no writ); Elkins v. Foster, 101 S.W.2d 294 (Tex.Civ. App., Amarillo, 1937, writ dism'd); 2 F. Harper & F. James, The Law of Torts § 16.15, at 951 (1956); Keeton, Annual Survey of Texas Law, Torts, 24 S.W.L.J. 3, at 19 (1970). Consequently, the parent of a minor guest has no cause of action for failure of the owner or operator to use ordinary care. Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934).
2. Constitutionality of guest statute
In plaintiff's constitutional attack, he argues that the statute denies equal protection of the laws because "its sole purpose and effect is to bestow an immunity on a special group by imposing an invidious discrimination against innocent injured persons," contrary to the guarantee of "equal rights" in Tex.Const. art. I, § 3 (Vernon's Ann.St. 1955) and the "equal protection" clause of the Fourteenth Amendment to the Constitution of the United States. We do not find this argument to be supported by the controlling authorities or by established principles of constitutional law.
a. The authorities
The constitutionality of the Texas guest statute has been upheld in three cases. Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593 (1938); Perry v. Harrod, 451 S.W.2d 821 (Tex.Civ.App., Amarillo, 1970, writ ref'd n. r. e.); Elkins v. Foster, 101 S.W.2d 294 (Tex.Civ.App., Amarillo, 1937, writ dism'd). None of the opinions cited specifies the ground of constitutional attack,
In Silver the plaintiff's principal contention was that the Connecticut guest statute, on which ours was modeled,
Similar statutes have been enacted in more than half of the states,
The only decision holding a statute similar to ours to be unconstitutional, so far as we have found, is Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973), upon which plaintiff here principally relies. In that case the Supreme Court of California in a carefully considered opinion holds that the California guest statute denies equal protection of the laws because of three arbitrary distinctions: (1) between gratuitous guests and paying passengers; (2) between automobile guests and other social guests; and (3) between different subclasses of automobile guests. The court declares that none of these classifications bears any rational relation to the purposes of the statute. It also holds that the statute is impermissibly broad in barring the recovery of honest as well as collusive guests. We shall consider each of these grounds separately.
b. Grounds of constitutional attack
(1) Guests and passengers
The California court characterizes the distinction between gratuitous guests and paying passengers as irrational in the light of its earlier decision in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), which abolished the long-standing common-law distinctions between the duties owed to business invitees, licensees and social guests, and imposed on landowners the duty to use reasonable care for the safety of all persons whose presence on the land might be anticipated. These distinctions are still recognized in Texas. In Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App., Dallas, 1971, writ ref'd
Moreover, in Massachusetts
Since the distinction between the duties owed to social guests and business invitees is thus recognized in other contexts, our question is whether it is irrational when considered in relation to the purpose of the guest statute. The party attacking the statute has the burden to show that it is irrational because legislation is presumed to be valid. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588 (1948). We conclude that plaintiff has not carried that burden in this case. The purpose of article 6701b is indicated in the emergency clause, which recites that under previous law "fraud may be perpetrated upon insurers of owners and operators of motor vehicles." Tex.Laws 1931, ch. 225, § 3, at 379. It would be difficult, if not impossible, to demonstrate that insured owners and operators are not more likely to collude with gratuitous guests than with paying passengers, or, at least, more inclined to allow their testimony about responsibility for an accident to be colored by sympathy for guests who have accepted their hospitality. Any conclusion of this court that the distinction between guests and paying passengers bears no rational relation to prevention of fraud on insurers would involve an appraisal of human motivations and reactions which judges are no better qualified to make than legislators. We cannot say that the legislature's determination of those matters has no rational basis.
(2) Automobile guests and other social guests
The second classification which the Brown opinion characterizes as irrational is that distinguishing between guests in automobiles and other social guests. This distinction is the identical ground presented to the Supreme Court of the United States in Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Mr. Justice Stone, writing for a unanimous Court, observed
We accept this decision as authoritative on the application of the federal equal protection clause to this particular type of statute. We see no reason to extend the strictures of the Fourteenth Amendment beyond the interpretation of the highest authority. No contention is made that the "equal rights" provision of our state Bill of Rights, Tex.Const. art. I, § 3 (Vernon 1955), establishes a different and more exacting standard for the Texas Legislature.
We do not agree with the suggestion in Brown that the Silver principle is no longer valid because the Connecticut statute reviewed in that case was "not set against the background of almost universal liability insurance." The California court asserts that a guest is not considered "ungrateful" if he sues his host's insurer.
(3) Subclasses of automobile guests
The third classification which the California court in Brown characterizes as irrational with respect to the purpose of the guest statute is that between different sub-classes of automobile guests. Brown points out that under the California statute a gratuitous guest may recover for ordinary negligence if he is injured while the vehicle is traveling over private land rather than on a public highway and also if he is temporarily outside the vehicle. The Texas statute has been similarly construed.
Silver is in harmony with other decisions holding that the equal protection clause does not require perfection in classifying the subjects of legislation. The classic statement of this concept was made by Mr. Justice Holmes in an opinion overruling an equal protection attack on a Texas statute which imposed a penalty solely on railroad companies for permitting Johnson grass to go to seed on their lands:
More recent decisions agree that an under-inclusive classification is not necessarily a fatal defect unless the legislation involves a "suspect classification," such as race or poverty, or a "fundamental interest," such as voting rights or freedom of speech. Only in these limited areas is a legislative classification subject to "strict scrutiny," which casts on the party seeking to uphold the statute the burden to establish a "compelling state interest."
(4) Honest and collusive guest suits
Finally, we cannot accept the California court's condemnation of the guest statute as an "impermissibly over-inclusive classification scheme." That court reasons that in broadly prohibiting all automobile guests from instituting actions for negligence because a "small segment" of that class may file collusive suits, the statute "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." The court goes on to say that instead of confining the disability to those who actually institute collusive suits, the statute reaches out beyond such persons and burdens the great number of honest automobile guests.
In order to deal with the problem at all, the legislature must weigh the advantage of barring fraudulent guest claims against the disadvantage of also barring honest guest claims. This balancing of intangibles is a proper legislative function. An analogous problem is dealt with in the Statute of Frauds,
Application of the rationality test to legislative classifications involves the general problem of defining the relative limits of legislative and judicial power. Proper definition of those limits requires judicial self-restraint. The equal protection clause of the Fourteenth Amendment and the "equal rights" clause of the Texas Constitution do not authorize courts to encroach on the legislature's area by exalting their own views of the wisdom of legislation to the rank of constitutional principles or by imposing standards so rigorous as to leave no tolerance for the imperfections inherent in political processes. Courts should accept legislative classifications as valid unless invidious discrimination is clearly demonstrated. We conclude that plaintiff has failed to demonstrate that the classification of automobile guests in article 6701b is either so arbitrarily under-inclusive or so arbitrarily over-inclusive as to constitute invidious discrimination.
The New Jersey and Wisconsin decisions cited have been overruled in Cohen v. Kaminetsky, 36 N.J. 276, 176 A.2d 483 (1961), and McConville v. State Farm Mutual Automobile Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14 (1962).