This is a host-guest automobile accident case tried to the court. Plaintiff appeals the judgment dismissing her action for damages because of failure to prove gross negligence proximately causing her injuries as required by RCW 46.08.080, Washington’s host-guest statute. The principal question is whether the statute is constitutional. We uphold the statute, find no other errors as assigned and affirm the judgment of dismissal.
The relevant facts are these: At approximately 2 a.m., November 14, 1971, defendant Mark Copeland was driving a car on Newquist Road, a public highway in the Satus area of Yakima County, Washington, with a car full of passengers returning from an evening dancing party all had at*60tended. Plaintiff Brenda Brewer was being driven home. Her status as a nonpaying guest is not disputed.
Proceeding east on the Newquist Road just south of the point where that road intersects with Highway 22, the car approached a gradual curve in the road. The night was dark, and the road surface wet with rain. There were no distracting influences in the car and there were no irregularities in Copeland’s driving. Copeland was unfamiliar with the road. The posted speed limit in the road area under consideration was 50 miles per hour. There was a posted “curve sign” giving notice of an impending curve without other warning of an existing hazard requiring a reduction in the posted speed limit to negotiate the curve. Copeland neither saw the curve sign nor the curve ahead. Unaware of the impending curve, he entered the curve at a speed of 50 miles per hour. Instead of following the curve, he proceeded straight ahead, left the roadway and crashed. Plaintiff was seriously injured. She later brought the instant action against defendant Copeland and Mid-Century Insurance Company, the liability insurance carrier, the latter having claimed the policy did not cover the accident.
The court dismissed plaintiff’s action. It found Copeland guilty of ordinary negligence only and not guilty of gross negligence. She appeals.
Her assignments of error revolve about the issue of gross negligence. RCW 46.08.080 provides:
No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator, or the result of said owner’s or operator’s gross negligence or intoxication, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action: Provided, That this section shall not relieve any owner or operator of a motor vehicle *61from liability while it is being demonstrated to a prospective purchaser.[1]
Plaintiff contends the statutory gross negligence requirement denies her equal protection under the federal and state constitutions. U.S. Const, amend 14; Const, art. 1, § 12. In support she advances arguments in many respects similar to those relied on in Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973), invalidating California’s host-guest automobile statute. Those arguments are summarized in Cannon v. Oviatt,............Utah____________, 520 P.2d 883 (1974). The California statute permits a nonpaying automobile guest to recover against his host driver only for “‘. . . the intoxication or willful misconduct of the driver.’ ” Brown v. Merlo, supra at 862 n.3. In that respect, the statute differs from RCW 46.08.080 which also permits recovery for the host driver’s gross negligence.
In contending RCW 46.08.080 violates plaintiff’s equal protection rights, plaintiff undertakes a heavy burden of persuasion. Justice v. Gatchell, 325 A.2d 97, 102 (Del. 1974). She must overcome the presumption of constitutionality beyond a reasonable doubt. Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 520 P.2d 162 (1974); State v. Perrigoue, 81 Wn.2d 640, 503 P.2d 1063 (1972); Water Dist. 105 v. State, 79 Wn.2d 337, 485 P.2d 66 (1971). When a statutory classification is challenged, it is presumed that facts sufficient to justify the classification exist. Sonitrol Northwest, Inc. v. Seattle, 84 Wn.2d 588, 528 P.2d 474 (1974); Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, supra; State v. J-R Distribs., Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973); State v. Persinger, 62 Wn.2d 362, 382 P.2d 497 (1963). Merely challenging the wisdom or expediency of the statute is not enough. Washington State School Directors Ass’n v. Department of Labor & Indus., 82 Wn.2d 367, 510 P.2d *62818 (1973); State v. Conifer Enterprises, Inc., 82 Wn.2d 94, 508 P.2d 149 (1973); State v. Scheffel, 82 Wn.2d 872, 514 P.2d 1052 (1973); Petstel, Inc. v. County of King, 77 Wn.2d 144, 459 P.2d 937 (1969). A change in public opinion concerning the desirability of the statute is insufficient. State v. Grabinski, 33 Wn.2d 603, 206 P.2d 1022 (1949).
If the policy is fairly debatable, the legislative remedy for dealing with the evil involved is within its competence. Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, supra; State v. Scheffel, supra; Reesman v. State, 74 Wn.2d 646, 445 P.2d 1004 (1968). In dealing with that evil, the legislature is not bound by decisional law or by the doctrine of stare decisis. It may change that law as, for example, the legislature did when it abolished the theretofore existing right of action for gross negligence in host-guest automobile cases (Laws of 1933, ch. 18, p. 145; Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936)); and when it later reinstated the right of action for gross negligence by the nonpaying guest against his host (Laws of 1957, ch. 132, p. 484), and then when it repealed the host-guest automobile statute by Laws of 1974, 1st Ex. Sess., ch. 3, p. 2.
Moreover, plaintiff’s burden is not diminished by the fact that Shea v. Olson, supra, upheld Washington’s first host-guest statute (Laws of 1933, ch. 18, p. 145) against an equal protection attack. See also Nogosek v. Truedner, 54 Wn.2d 906, 344 P.2d 1028 (1959). In Freehe v. Freehe, 81 Wn.2d 183, 500 P.2d 771 (1972), the court, in rejecting the argument the abolition of the doctrine of interspousal immunity would encourage fraud, pointed out the legislature could deal with the fraud problem as it had in enacting RCW 46.08.080, .085, and .086 — an indirect recognition of the continued validity of those statutes. Moreover, the majority of the cases in this country have upheld the constitutionality of legislative distinctions between paying and nonpaying guests in automobile host-guest statutes. Some of these statutes have abolished the nonpaying guest’s right of action for negligence, ordinary or gross, and others have per*63mitted the nonpaying guest to recover upon a showing of gross negligence. See illustrative cases cited in the margin.2 Although in several cases the courts have followed Brown v. Merlo, supra,3 the majority of cases have refused so to do, finding the rationale of Brown unpersuasive.4
Plaintiff basically contends RCW 46.08.080 irrationally singles out for adverse treatment the nonpaying automobile guest in a car driven on a public highway of this state; that such action violates equal protection because it does not have “ £. . .a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” Reed v. Reed, 404 U.S. 71, 76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); State v. Perrigoue, supra.
The object or justification for host-guest statutes as discussed by plaintiff following Brown are traditionally two: promotion of driver hospitality and prevention of collusion in automobile accident cases. First, the statute insulates “generous drivers from lawsuits instituted by ungrateful guests who have benefited from a free ride.” Secondly, the statute helps eliminate “collusive lawsuits, in which a host fraudulently confesses negligence so as to permit his guest *64—presumably a friend or relative — to collect from the host’s insurance company.” Brown v. Merlo, supra at 864.
In support of her claim there is no constitutional justification for the statute’s classification scheme, she argues (1) there is no rational basis for protecting the paying guest and withdrawing that protection from the nonpaying guest; (2) the increased use of automobile liability insurance coverage negates the idea that initiation of a lawsuit by an injured passenger constitutes an act of ingratitude toward the host driver; (3) the constitutionality of a statute predicated upon the existence of a particular set of facts when the statute was enacted may be challenged when those facts have ceased to exist — the case here; (4) analogizing from cases invalidating the doctrine of charitable immunity (Friend v. Cove Methodist Church, Inc., 65 Wn.2d 174, 396 P.2d 546 (1964); Pierce v. Yakima Valley Memorial Hosp. Ass’n, 43 Wn.2d 162, 260 P.2d 765 (1953)), and from cases increasing the land-occupier’s duty of care to licensees (Potts v. Amis, 62 Wn.2d 777, 384 P.2d 825 (1963); Ward v. Thompson, 57 Wn.2d 655, 359 P.2d 143 (1961)), and broadening the category of invitees (McKinnon v. Washington Fed. Sav. & Loan Ass’n, 68 Wn.2d 644, 414 P.2d 773 (1966)), plaintiff argues it is irrational to assume that, if a recipient of generosity is permitted to recover for negligently inflicted injuries, the cause of ingratitude will be served or the cause of hospitality disserved; (5) characterizing the initiation of a lawsuit by a guest as an act of ingratitude is inconsistent with the policy of RCW 46.29, the financial responsibility law, which is to insure compensation for all innocent car accident victims; and (6) the hospitality justification does not explain the different treatment of automobile guests as contrasted with that accorded other guests, i.e., in airplanes, motorboats, and on private property.
Plaintiff also contends the collusion rationale does not justify the classification scheme. She argues (1) it is unreasonable to eliminate rights of action of all guests simply because some may file fraudulent lawsuits; (2) the statute *65is unconstitutionally over inclusive because it penalizes guests who do not engage in collusion; (3) the statute is unconstitutionally under inclusive because a large number of persons who might pose a threat of collusion are permitted to escape by bestowing some minimal compensation on the host; (4) other exceptions in RCW 46.08.080 in light of RCW 46.08.030 are unrelated to the statute’s hospitality and anticollusion objectives, i.e., whether the automobile was on a private or public road, whether the driver was intoxicated, or whether the driver was grossly or ordinarily negligent. Some cases have rejected the increased possibility of fraud argument as a sufficient reason for preventing a change in law otherwise desirable. Freehe v. Freehe, supra (interspousal immunity); Borst v. Borst, 41 Wn.2d 642, 251 P.2d 149 (1952) (parental immunity).
We fail to find these arguments persuasive. They tend to show the legislation is unwise — a matter as to which the legislature has a right to its own views. To succeed in her contention that the statutory classification bears no rational relation to the object of the legislation, plaintiff must show no state of facts exists or can be reasonably conceived to exist that will justify the classification; that if the facts were originally sufficient, the facts at the time of the automobile accident in 1971 had so far changed as to render the classification irrational and, indeed, obsolete.
The last classification made by the legislature in the host-guest statute was about 18 years ago (Laws of 1957, ch. 132, p. 484) when the court restored the nonpaying guest’s right of action for gross negligence in a host-guest automobile accident case involving the use of the public highways of the state. When chapter 132 was enacted, the presumption is facts existed to justify the classification. Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, supra; State v. Persinger, supra; Overlake Homes, Inc. v. Seattle-First Nat'l Bank, 57 Wn.2d 881, 360 P.2d 570 (1961); Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960); cert. denied, 364 U.S. 932, 5 L. Ed. 2d 365, 81 S. *66Ct. 379 (1961). The record fails to show any material change by 1971 in the facts presumably existing when the 1957 amendment was enacted and when chapter 18 of Laws of 1933, page 145 was enacted.
Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936), describes the facts which might have brought about the enactment of chapter 18 of Laws of 1933. The court said at pages 155-56:
From the information and knowledge had by the legislature upon the subject, that body may have concluded that this type of litigation had not only become vexatious, but had reached a point where it should no longer be encouraged or permitted; that it would reduce the number of reckless drivers if those who accepted their gratuities should exercise greater circumspection in their choice of hosts and the conditions under which a trip was to be made; that careful drivers who otherwise would be willing to extend a favor or gratuity were nevertheless deterred by the fear that, through some misfortune, they would be charged with gross negligence and be compelled to defend suits for exorbitant sums; that still others were too willing to misrepresent facts, or to permit them to be misrepresented unchallenged, with the result that unjust judgments were often obtained which the courts could not prevent; and finally, that, in the regulation of the state’s highways, the legislature would assume its prerogative of imposing certain conditions under which the highways might be used, with the view of making them safer for all concerned.
The court concluded:
These were matters upon which the legislature could exercise its discretion, and with which the courts are not concerned. Such a state of facts may reasonably be conceived as having existed and to have been presented to, and considered by, the legislature. If so, then we believe that the legislature was justified in passing the measure that it did.
The court further concluded:
There was a reasonable basis for making a distinction between invited guests and paying passengers, and, as to ah persons similarly situated, the law operated equally.
*67Hence, there was no denial of equal privileges or immunities.
(Citations omitted.)
In the absence of a showing by evidence or by judicial notice that the facts described in Shea v. Olson, supra, have substantially changed, we cannot say the statute is now so obsolete as to deprive the classification of a rational relationship to the object of the legislation. Duerst v. Limbocker, 269 Ore. 252, 525 P.2d 99 (1974). In fact, as late as 1972, the Supreme Court in Freehe v. Freehe, 81 Wn.2d 183, 500 P.2d 771 (1972), cited RCW 46.08.080, .085, and .086 as illustrating a permissible exercise of legislative power to deal with the problem of preventing fraud.
Moreover, it is useful in upholding RCW 46.08.080 to point out or reemphasize some significant differences between the law applied in Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973) and the law followed in Washington.
1. Such a recovery for gross negligence in host-guest automobile cases was permitted by decisional law prior to Laws of 1933, ch. 18, p. 145.5 RCW 46.08.080 has permitted recovery for gross negligence since 1957. The California statute permits no such recovery. Brown v. Merlo, supra at 863 n.3. The Washington decisional rule requiring a showing of gross negligence in host-guest automobile accident cases was based upon the analogy drawn from the rule discussed in Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168 (1917), that one who gratuitously undertakes to perform an act is not liable for ordinary negligence but is liable for gross negligence. Shea v. Olson, supra; Heiman v. Kloizner, 139 Wash. 655, 247 P. 1034 (1926). Washington *68still refuses a bailor recovery against his gratuitous bailee for ordinary negligence; he must show gross negligence. Nist v. Tudor, 67 Wn.2d 322, 407 P.2d 798 (1965). Massaletti v. Fitzroy, supra, was last cited with approval in Falden v. Crook, 342 Mass. 173,172 N.E.2d 686 (1961).
2. Notwithstanding the increased use of liability insurance, we still have the uninsured or underinsured motorist.6 Moreover,, the propriety of shifting the burden of increased insurance costs by removing the obstacle to recovery for ordinary negligence is a matter on which the legislature may have one view and the courts another. In such a case, it is within the competence of the legislature to *69determine the rule of liability which is to govern.7 Duerst v. Limbocker, supra.
3. Washington continues to adhere to the view followed in Shea v. Olson, supra, that if any state of facts can reasonably be conceived to uphold the legislation including the classification made therein, the legislation will be upheld. Sonitrol Northwest, Inc. v. Seattle, 84 Wn.2d 588, 528 P.2d 474 (1974); Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 520 P.2d 162 (1974); State v. J-R Distribs., Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973); State v. Persinger, 62 Wn.2d 362, 382 P.2d 497 (1963); McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 81 S. Ct. 1101, 1153, 1218 (1961). Brown declined to accept that approach. Brown v. Merlo, supra at 865 n.7.8
*704. Unlike Brown, Shea v. Olson, supra, cited and followed Silver v. Silver, 280 U.S. 117, 74 L. Ed. 221, 50 S. Ct. 57, 65 A.L.R 939 (1929). Silver v. Silver, supra at 123-24, also pointed out:
[Tjhere is no constitutional requirement that a regulation, in other respects permissible, must reach every class to which it might be applied — that the legislature must be held rigidly to the choice of regulating all or none. . . . It is enough that the present statute strikes at the evil where it is felt and reaches the class of cases where it most frequently occurs.
See also Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955); Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 531, 520 P.2d 162 (1974).
5. The fact that in other areas of tort law the Supreme Court of Washington has not treated the increased possibility of fraud as significant, does not mean that the legislature may not have a different view of that matter in host-guest automobile cases. Freehe v. Freehe, supra. There is a difference between the standard to be *71applied when the problem is overruling a common-law doctrine and the standard to be applied when the problem is to determine whether to nullify a statute. In Aetna, at page 530, the court properly pointed out: “[T]he legislature is allowed a wide discretion in the selection of classes.” The court also pointed out at page 529 of the Aetna opinion: “ [I]t is not the function of this court in the exercise of judicial review to second-guess the wisdom of legislative determinations.” Moreover, cases refusing to follow Brown have pointed out that, if the host-guest law is to be changed, the change should be made by the legislature. Richardson v. Hansen, 186 Colo. 346, 527 P.2d 536 (1974); Justice v. Gatchell, 325 A.2d 97 (Del. 1974); Keasling v. Thompson, 217 N.W.2d 687 (Iowa 1974); Duerst v. Limbocker, 269 Ore. 252, 525 P.2d 99 (1974); Tisko v. Harrison, 500 S.W.2d 565 (Tex. Civ. App. 1973); Cannon v. Oviatt, ............Utah............, 520 P.2d 883 (1974). In Washington, after earlier changes, the legislature has now repealed RCW 46.08.080, .085, and .086 effective 90 days after the legislature adjourned, i.e., July 24,1974.
We conclude a finding of ordinary negligence is insufficient to permit recovery.
Plaintiff next contends that defendant Copeland was guilty of gross negligence as a matter of law. Notwithstanding prior difficulties of distinguishing between gross negligence and ordinary negligence in a host-guest case, gross negligence is now more clearly defined in Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965), followed in Zarling v. Stumbaugh, 67 Wn.2d 405, 408 P.2d 17 (1965), as follows:
great negligence, that is, negligence substantially and appreciably greater than ordinary negligence. Its correlative, failure to exercise slight care, means not the total absence of care but care substantially or appreciably less than the quantum of care inhering in ordinary negligence. In determining the degree of negligence, the law must necessarily look to the hazards of the situation confronting the actor.
Some cases merely determine whether there is sufficient *72evidence of gross negligence to go to the jury or other trier of the fact. Ketchum v. Wood, 73 Wn.2d 335, 438 P.2d 596 (1968); Tyler v. Tyler, 65 Wn.2d 102, 395 P.2d 1021, 6 A.L.R. 3d 764 (1964); and Pickering v. Stearns, 182 Wash. 234, 46 P.2d 394 (1935). Other cases determine whether there is gross or ordinary negligence. Dailey v. Phoenix Inv. Co., 155 Wash. 597, 285 P. 657 (1930); Blood v. Austin, 149 Wash. 41, 270 P. 103 (1928); Saxe v. Terry, 140 Wash. 503, 250 P. 27 (1926); Elowitz v. Miller, 265 Mich. 551, 251 N.W. 548 (1933); Mater v. Becraft, 261 Mich. 477, 246 N.W. 191 (1933).
In Elowitz v. Miller, 265 Mich. 551, 251 N.W. 548 (1933), the failure of an automobile driver to see a curve in the street in time to have safely slowed down to make the turn was held to be at most ordinary negligence.
In Mater v. Becraft, 261 Mich. 477, 246 N.W. 191 (1933), a guest was held not entitled to recover where neither the driver nor the guest saw the curve in the road, the driver apparently having become confused and misled by the lights of an oil station near the curve. The court held that the driver may have been negligent in driving too fast and not applying the brakes in time but this lack of care was at most ordinary negligence.
In the instant case, Copeland’s negligence consisted in his failure to see the curve or the posted sign giving notice of the impending curve. He entered the curve at a speed of 50 miles per hour, the posted speed limit on the Newquist Road at the place the accident occurred. There was no warning the posted speed limit should be reduced. At most, it might be argued a fact issue existed as to whether the conduct here was gross negligence. That fact issue, however, was resolved against the plaintiff. The court found Copeland’s negligence was ordinary negligence only. We cannot hold as a matter of law the court was required to find gross negligence.
Plaintiff then contends the court erred in excluding the state trooper’s testimony concerning a statement made to him. by a Copeland car passenger an hour after the acci*73dent. The state trooper testified the car passenger “was quite stable out there at the accident scene.” He further testified that, at the hospital where the statement was made, the passenger “talked as normal as he would . . . not being involved in an accident.” The passenger told him, “the last time that he [passenger] looked at the speedometer, just prior to the accident, he [defendant] was doing 60 mph.” The court refused the testimony because it did not come within the res gestae exception to the hearsay rule.
Robbins v. Greene, 43 Wn.2d 315, 321, 261 P.2d 83 (1953), explains:
The so-called res gestae rule is applied with respect to the admission of testimony concerning statements made by participants in a transaction or by other persons present thereat. The theory of the admission of such testimony is that the statement is made while the person is still under the influence of the act and before there is time for him to fabricate. It may be made in answer to a question, provided it is spontaneous and under circumstances which would negative the thought that it might have been made with design or premeditation.
See also Beck v. Dye, 200 Wash. 1, 92 P.2d 1113, 127 A.L.R. 1022 (1939).
The determination of whether the state trooper’s testimony was admissible under the res gestae rule was within the sound discretion of the trial court. It was for the court to make a determination of whether the required elements described in Robbins v. Greene, supra, and in Beck v. Dye, supra, were present. We find no abuse. May v. Wright, 62 Wn.2d. 69, 381 P.2d 601 (1963); Langer v. Auto Interurban Co., 28 Wn.2d 343,183 P.2d 188 (1947); Grant v. Oregon R.R. & Nav. Co., 54 Wash. 678, 103 P. 1126 (1909); 5 Meisenholder, Wash. Prac., Evidence § 491, at 474 (1965); Annot., 53 A.L.R.2d 1245, § 5, at 1260-62 (1957).
Plaintiff contends the court erred in “failing to consider” the opinion of the patrol officer investigating the accident concerning what would have been the reasonably safe speed prior to the accident at which the motor vehicle *74could have successfully negotiated the curve. The opinion was received but the court explained why the opinion was not persuasive, saying:
For example, in the experiment that he [the patrol officer] made with his car the day of his testimony he stated that he thought 30 miles an hour was the maximum safe speed for that corner under similar circumstances with a wet road, and then he amended that to 35; but in two places in his testimony he was reluctant to answer counsel’s questions at all, saying in one place, “It’s hard for me to answer that” (that had to do with whether the physical evidence bore out the speed), and in another place, when invited to discuss whether heavy or light cars are better able to negotiate curves, that he was “no expert on that.” He repeated that statement in another place, although he was offered as an expert.
A trial court has the right to reject expert testimony in whole or in part in accordance with its views as to the persuasive character of that evidence. In light of the court’s explanation, we cannot say the court acted arbitrarily or capriciously in refusing to accept the evidence as to proper speed. Sylvain v. Page, 84 Mont. 424, 276 P. 16, 63 A.L.R. 528 (1929); In re Estate of Patterson, 333 Pa. 92, 3 A.2d 320,120 A.L.R. 967 (1939).
Plaintiff contends the court misinterpreted the trooper’s testimony dealing with the 35 mile per hour speed. The witness testified he did not remember talking to the insurance company’s claim agent concerning the proper speed at which the Copeland vehicle should have been driven to negotiate the curve in the road, but it was possible he told the agent that “35 mph was a safe speed at the time.” The court was empowered to draw reasonable inferences from that testimony. N. Fiorito Co. v. State, 69 Wn.2d 616, 419 P.2d 586 (1966); Rognrust v. Seto, 2 Wn. App. 215, 467 P.2d 204 (1970). One such inference it could draw was that had the witness held no such opinion he would not have admitted the possibility he had expressed it.
Copeland not being liable, we need not determine *75whether Mid-Century Insurance Company’s insurance policy covered the accident involved.
Affirmed.
Stafford, C.J., Hamilton and Wright, JJ., and Revelle, J. Pro Tern., concur.
RCW 46.08.080 together with RCW 46.08.085 and RCW 46.08.086 were repealed a little more than 2 Yz years after the accident here. Engrossed Senate Bill No. 2046, Laws of 1974, 1st Ex. Sess., ch. 3, p. 2, effective 90 days after the legislature adjourned, i.e., July 24, 1974.
Cases from order jurisdictions in which a host-guest statute has been found to be constitutional include: Silver v. Silver, 280 U.S. 117, 74 L. Ed. 221, 50 S. Ct. 57, 65 A.L.R. 939 (1929), aff’g 108 Conn. 371, 143 A. 240, 65 A.L.R. 943 (1928); Richardson v. Hansen, 186 Colo. 346, 527 P.2d 536 (1974); Justice v. Gatchell, 325 A.2d 97 (Del. 1974); Keasling v. Thompson, 217 N.W.2d 687 (Iowa 1974); Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189 (1931); Miller v. Huizinga, 23 Mich. App. 363, 178 N.W.2d 542 (1970); Smith v. Williams, 51 Ohio App. 464, 1 N.E.2d 643 (1935); Duerst v. Limbocker, 269 Ore. 252, 525 P.2d 99 (1974); Tisko v. Harrison, 500 S.W.2d 565 (Tex. Civ. App. 1973) ; Cannon v. Oviatt,........Utah........, 520 P.2d 883 (1974).
Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1975); Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974).
Behrns v. Burke, ........ S.D.......... 229 N.W.2d 86 (1975); Richardson v. Hansen, 186 Colo. 346, 527 P.2d 536 (1974); Justice v. Gatchell, 325 A.2d 97 (Del. 1974); Keasling v. Thompson, 217 N.W.2d 687 (Iowa 1974) ; Duerst v. Limbocker, 269 Ore. 252, 525 P.2d 99 (1974); Tisko v. Harrison, 500 S.W.2d 565 (Tex. Civ. App. 1973); Cannon v. Oviatt, ........Utah........, 520 P.2d 883 (1974).
Even if the statutory classification were held unconstitutional, so as to permit resort to decisional law to determine liability, plaintiff could still not recover without a showing of gross negligence because Washington case law does not permit it. Shea v. Olson, 185 Wash. 143, 148, 53 P.2d 615, 111 A.L.R. 998 (1936). If the statute is constitutional, however, we need not determine whether prior decisional law should be overruled to permit recovery upon the finding of ordinary negligence.
In Washington in 1967, the only year for which figures are available in any publication, between 21 and 25 percent of private passenger cars were not insured. United States Department of Transportation Study “Automobile Insurance and Compensation Study” at page 205, Table I (October 1970). As of April 1, 1974, Washington had 2,145,283 licensed drivers. The State of Washington Pocket Data Book 1974 at page 157. Many of these undoubtedly did not own passenger cars but the figures suggest that the number of uninsured passenger cars was very substantial.
Moreover, the presence of .uninsured motorist coverage in liability insurance policies is common. In California Uninsured Motorist Practice, published by California Continuing Education of the Bar (1973), the preface states at page 7:
It has been estimated that approximately 20 percent of motorists are uninsured and that uninsured motorists account for a higher percentage of accidents than their numbers warrant. It has also been estimated that close to one-fourth of persons injured in automobile accidents will have uninsured motorist claims.
Moreover, even in the case of insured drivers, the fact that insurance exists does not mean that the insured driver does not resent suit by a nonpaying guest. Not only is the insured driver put to the trouble, inconvenience and distasteful necessity of cooperating in assisting and defending the litigation, thus diverting the insured from his normal pursuits — he also faces possible worry and expense in hiring counsel to defend himself against a possible verdict in excess of his policy limits; he is' exposed to the possibility his insurance will be cancelled, if his policy permits such cancellation; and exposed to the possibility his policy may not be renewed or may not be renewed except at a higher premium cost.
These considerations have existed from the time the first host-guest statute was enacted in this state. It continued to exist when in 1957 the legislature restored the cause of action for gross negligence previously eliminated.
In a number of Washington statutes, the legislature has fixed the standard of care at something higher than ordinary negligence. These include a requirement of gross negligence. RCW 9.08.040; 9.48.120; 14.12.200; 18.04.300; 18.08.200; 18.43.110; 18.74.080; 18.90.060; 18.96.120; 19.48.030; 19.48.070; 20.01.330 (willful negligence); 21.24.050; 21.25.050; 38.52.180; 38.52.195; 41.40.200 (willful negligence).
Brown v. Merlo, 8 Cal. 3d 855, 865 n.7, 506 P.2d 212, 106 Cal. Rptr. 388 (1973), cites with approval Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972). Professor Gunther described his Model for a New Equal Protection as an “invigorated” rational basis test calling for a “modest interventionism.” Under his model, a court “would be less willing to supply justifying rationales by exercising its imagination.” He objects to “perfunctory judicial hypothesizing.” 86 Harv. L. Rev. at 21. Brown v. Merlo, supra, stated, in effect, it was wrong to uphold legislation by a “totally unrealistic state purpose” when accomplished “by straining our imagination . . .”
Gunther, in his search for “evolving doctrine” in equal protection cases does not claim a statute may be declared unconstitutional merely because the court may believe it to be unwise. He does not suggest nor argue a statúte is not still presumed constitutional. Accordingly, the state still has no burden to show the existence of a state of facts necessary to uphold the statute except in the suspect class and fundamental right violation cases. What Gunther asks is, is that the standard of review be more than minimal scrutiny but less than strict scrutiny in order to permit a “modest interventionism.”
She a v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936) did not uphold the 1933 host-guest statute by “straining its imagination” to support a “totally unrealistic state purpose.” It expressly applied the rule that if any state of facts can “reasonably” be conceived to support *70the statutory classification, it will do so. That principle was followed last year in a unanimous decision, Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 528, 520 P.2d 162 (1974). The court said:
Every state of facts sufficient to sustain a classification which reasonably can be conceived of as having existed when the law was adopted will be assumed. ... A statute’s alleged unconstitutionality must be proven “beyond all reasonable doubt” before it may be struck down.
(Italics ours.) In any event, the Supreme Court decisions since Gunther’s article was published have not adopted his proposed test. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974); Citizens Comm. for Faraday Wood v. Lindsay, 507 F.2d 1065 (2d Cir. 1974). In this case, the result reached would be the same even if the Gunther suggestion were adopted. A majority of the courts considering Brown v. Merlo, sv/pra, including Behrns v. Burke, ........ S.D........., 229 N.W.2d 86 (1975) and cited in footnote 4 have refused to follow Brown v. Merlo, supra. They were obviously aware of Gunther’s article cited and discussed in Brown v. Merlo, supra at 865 n.7. Apparently the “invigorated” rational basis test calling for a “modest interventionism” was deemed an insufficient reason for invalidating the host-guest statutes involved in those cases.