(dissenting).
The issue to be resolved on this appeal is whether our guest statute [§ 64—24—1, N. M.S.A.1953 (Repl.Vol. 9, pt. 2, 1972)] violates the equal protection provisions of article II, § 18 of the Constitution of New Mexico and the fourteenth amendment to the Constitution of the United States, in that liability of the owner of a motor vehicle for injury, death or loss sustained by a guest passenger in such vehicle, who has not paid for his transportation, arises only if the accident resulting in the injury, death or loss was intentional on the part of the owner or caused by his heedlessness or his reckless disregard of the rights of others, while liability for injury, death or loss sustained in an accident by a paying passenger in said vehicle depends upon a different and lesser degree of culpable conduct on the part of the owner, to wit, ordinary negligence. It is contended, and the majority of the court hold, that this legislative classification is arbitrary, unreasonable and violative of the equal protection provisions of our state and federal constitutions. I am unable to agree.
The majority correctly cite the four cases in which the constitutionality of our guest statute has been questioned. However, in my opinion, they erroneously overrule the decisions in two of those cases, Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968) and Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (Ct.App.1967), cert. denied, 78 N.M. 704, 437 P.2d 165 (1968). The case law applicable to a judicial review of an attack upon the constitutionality of legislation is also cited in the majority opinion. However, in my opinion, the majority reach a result totally inconsistent with and contrary to a proper application of the principles stated in those cases. I urge a reading of those authorities and a careful comparison of the legislative classifications which have been upheld with the classification with which we aré here concerned and which the majority now strike down.
In support of my position, I call particular attention to the following pronouncements concerned with equal protection attacks upon legislative classifications:
“Equal protection does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and does not apply, and that it is so framed as to embrace equally all who may be in like circumstances and situations.”
Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965). (The above-quoted language is also quoted in the majority opinion)
“We examine the language of the act and look to the purposes sought to be achieved thereby to determine whether the case presented can withstand the general attack here made upon constitutional grounds. We are not concerned with the uncertainty of the effects or wisdom of the legislation.” (Emphasis added).
Arnold v. Board of Barber Examiners, 45 N.M. 57, 109 P.2d 779 (1941)
“One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911).
The majority argue that the classification here involved is irrational because no reason appears why the host owner should owe a nonpaying guest a lesser degree of care than nonpassengers. The reason is simply that a reduction in the duty of care owed by him to nonpassengers could not possibly promote the following objectives which are clearly promoted by the classification in our guest statute: (1) hospitality and generosity; (2) multi-passenger use of motor vehicles in order to promote such social and governmental interests as the reduction of energy consumption, air pollution and traffic congestion; (3) prevention, or at least a reduction in the chances, of possible fraud and collusion.
Surprisingly, the majority also argue that these purposes, and particularly that of the promotion of hospitality and generosity, are irrational because of the widespread availability and existence of liability insurance coverage for all owners of motor vehicles. It is true that liability insurance is readily available to most owners and drivers at a price, and it is also true that we have a Financial Responsibility Act in New Mexico, §§ 64-24-42 to 104, N.M.S.A. 1953 (Repl.Vol. 9, pt. 2, 1972). However, its provisions apply only to motor vehicle owners or operators who have been previously found to be responsible for damages to another or others for injuries sustained in a motor vehicle accident and who have not discharged their responsibility. Larson v. Occidental Fire and Casualty Company, 79 N.M. 562, 446 P.2d 210 (1968). Even those coming within the act are required only to furnish proof of responsibility in limited amounts. Section 64-24-65, supra. The required amounts are clearly inadequate to protect the insured from personal liability for damages occasioned in many motor vehicle accidents, and in most, if not in all, accidents in which serious personal injuries result. Even in those cases in which the insurance coverage is sufficient to protect the insured against personal liability for any judgment recovered, we must recognize the personal inconvenience, anguish and non-reimbursable expenses inevitably involved in a defense of a personal injury claim.
I agree with the majority that “no principle in our general legal scheme” requires one to pay for the right of protection from negligently inflicted injury. However, this is not the issue. The question is whether the Legislature may properly distinguish between a nonpaying guest and a paying passenger with relation to their host’s liability. It is for the Legislature, and not for the judiciary, to determine the risk-spreading, public policy issues behind the partial shielding of generous hosts.
It is not for this court to decide that hospitality is outmoded or not to be encouraged. Much like our guest statute, which is being struck down by the majority, is our so-called “Good Samaritan” Act. Sections 12-25-3 and 4, N.M.S.A.1953 (Repl.Vol. 3, Supp.1973). That statute, like our guest statute, rewards hospitality, generosity and concern for others in need by reducing the exposure to liability of one who freely renders emergency care, and leaves undisturbed the greater duty of ordinary care upon one who performs the same acts of care for remuneration.
The majority rely heavily on the reasoning and analysis of the California court in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973). In my judgment, this reliance is clearly misplaced. The California guest statute differed substantially from our statute, in that it provided what the California court called statutory “loopholes.” The California statute had the effect of narrowing those covered by the act to those “guests” injured (1) “during the ride” while (2) “upon the highway.” The New Mexico statute contains no such limitations. It is clear from the reading of the opinion in Brown v. Merlo, supra, that these limitations and their haphazard application were significant factors in the determination that the statute arbitrarily discriminated against a class of guests. See Lascher, Hard Laws Make Bad Cases — Lots of Them, 9 Santa Clara Lawyer 1, 14 (1968).
In a series of decisions, the California court has pursued the course of progressively abolishing common law immunities and distinctions drawn with regard to duty owed based upon the status of the plaintiff relative to the defendant. Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241 (1951) (charitable immunity); Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955) (intrafamily tort immunity); Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) (land owner responsibility). The effect of these decisions was to leave the automobile guest virtually isolated under California law as one whose abilities to recover for personal injuries depended upon his status with respect to the defendant. This is not the case in New Mexico. In addition to o,ur automobile guest statute, we have an airplane guest statute. Section 44-1-16, N.M.S.A.1953 (Repl.Vol. 7, 1966). We preserve most of the common law rejected by the California court. E. g., Nahas v. Noble, 77 N.M. 139, 420 P.2d 127 (1966) (intrafamily tort immunity) ; Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966) (duties owed to invitees and licensees) ; Latimer v. City of Clovis, 83 N.M. 610, 495 P.2d 788 (Ct.App.1972) (duty owed to trespassers).
The automobile guest in this state is not singled out as an object of discrimination as he appears to have been under California law and under the California guest statute. This isolation was a significant factor in the decision of the California court in Brown v. Merlo, supra. In addition, for the California court to cite legislative repeal of guest statutes in other states and judicial overruling of court-created doctrine as authority for the proposition that its statute violated equal protection principles is indicative of a penchant for substituting its policy judgment for that of the Legislature under the banner of equal protection.
For the foregoing reasons and the reasons cited in Cortez v. Martinez, supra, and Romero v. Tilton, supra, I hereby respectfully dissent.