(dissenting): Whether a Kansas motorist should be subjected to suit by gratuitous passengers, including members of his own family, for injuries caused by ordinary negligence is a sensitive policy question which has been repeatedly debated in the legislative halls of this state for many years. Although, as pointed out in the majority opinion, our Kansas guest statute has heretofore withstood many constitutional challenges, the court today has relied upon the constitutional principle of equal protection based upon tire alleged unreasonable classification of gratuitous passengers ■ as espoused by the California court in Brown v. Merlo, 8 Cal. 3d 855, 506 P. 2d 212, 106 Cal. Rptr. 388, and judicially abolished the statute rather than waiting for the legislature to act.
The court has reasoned that the “hospitality” and “collusive lawsuits” arguments have been so eroded by changing conditions— *763particularly expansion of liability insurance coverage — that they no longer serve as a reasonable basis for a gratuitous passenger classification. To the two justifications mentioned I would add the evils of vexatious litigation. (Silver v. Silver, 280 U. S. 117, 74 L. Ed. 221, 50 S. Ct. 57, 65 A. L.R. 939.)
Traditionally, this court as well as courts generally have afforded legislative classifications a presumption of reasonableness and constitutionality where discrimination is not based upon race, color, religion, ancestry or financial position. (Allied Stores of Ohio v. Bowers, 358 U. S. 522, 3 L. Ed. 2d 480, 79 S. Ct. 437; Vol. 1 Antieau, Modern Constitutional Law, § 8:81, p. 630.) A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. (McGowan v. Maryland, 366 U. S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101.)
In many legislative enactments, a number of which have withstood constitutional challenges before this court, the use of an automobile on Kansas highways has been recognized as peculiarly the subject of regulation. Our guest statute (K. S. A. 8-122b) is incorporated in the regulatory provisions of the Automobiles And Other Motor Vehicles Act and is nothing more than an increment to the regulatory provisions contained therein.
On the basis of the record presented and information at hand I cannot assume that there are no evils to be corrected or permissible social objects to be gained by the statute. Nor am I able to agree that no state of facts could reasonably be conceived that would justify the classification set out by the statute.
Whether the concepts of hospitality, collusive lawsuits and vexatious litigation have been so eroded by changing conditions that they have become obliterated as justifications for the Act poses a question steeped with social implications and is much more appropriate for legislative solution than judicial determination. A legislative committee has much broader access to relevant information bearing upon these matters than that afforded a court bound by the limitations of a record of judicial proceedings. A bill (House Bill No. 1634) to repeal the statute is pending before the legislature now in session.
For the reasons stated I believe the legislature is the proper forum for determination of the issue and, therefore, respectfully dissent.
Schroeder and Fromme, JJ., join in the foregoing ‘dissenting opinion.