specially concurring.
Justice Sloan’s dissenting opinion contains two suggestions which require judicial comment. Beginning with the hypothesis that our guest statute is “unworkable,” it is suggested that we either judicially repeal the statute or leave its interpretation entirely to the jury. Neither of these alternatives is consistent with our responsibilities as an appellate court.
Unquestionably, it is proper for us, in fact it is our duty, to repudiate outmoded principles of law announced and applied in our previous cases. But we have neither the duty nor the right to repudiate a statute merely because we do not believe that its application would carry out a wise policy. The function of declaring the policy of this state through law is shared by the legislature and the courts. It is within the power of the legislature to limit the automobile guest’s right of recovery to cases in which the host-driver is guilty of misconduct of an aggravated type, and it may do so for reasons which do not appeal to us.
Perhaps the dissent means to say only that the legislature has such power but that through change the legislative reason has disappeared and the statute has, therefore, lost its legislative sanction. But we have no ground for assuming that the legislature regards the guest statute as outmoded. Considering the great volume of litigation under the statute it would, indeed, be a strange assumption.
If we can so readily dispose of an existing statute by indulging in the speculation that the legislative purpose has been abandoned, then many of our.statutes *209are susceptible to the same treatment. The constitutional separation of the functions of the judiciary and the legislature does not contemplate such judicial egoism.
Justice Sloan then suggests that if the guest statute is permitted to live we should leave to the jury the function of determining whether particular conduct is within the statute. As I understand the suggestion, we would no longer review the guest cases to determine whether there was sufficient evidence to establish gross negligence. For reasons which need not be recited here, I believe that it would be unwise to abdicate our supervision of the jury in this area. If we accept Justice Sloan’s view that we should give up our control over the jury in the determination of the sufficiency of evidence of aggravated fault in the guest cases, there would be as much reason for refusing to review the jury’s determination where the guest statute is not involved and the only question is whether the defendant was guilty of ordinary negligence. It is as difficult to draw the line between negligence and the absence thereof as it is to draw the line between negligence and reckless conduct.
The reference to Justice Holmes’ view is misleading. Justice Holmes believed that the question of negligence should be determined by the court and not by the jury. That was simply his belief in a theory of the respective functions of judge and jury. Knowing that the law was to the contrary, he did not, as a judge, insist upon taking over the function of the jury in negligence cases. The dissent would make it appear that in Williamson v. McKenna, supra, we adopted Holmes’ view. That is not so. In that case we recognized the proper function of the jury and *210we also recognized the duty of the court to pass on the sufficiency of evidence warranting the submission to the jury of the question of the driver’s aggravated fault. It is impossible to perform that duty unless a division is made between ordinary and aggravated fault. In that ease an attempt was made to formulate a useable basis for maldng the division. I believe that the solution adopted in the Williamson case is preferable to the judicial repeal of the guest statute or the abdication of a part of our function of review in the guest cases, the alternatives suggested by Justice Sloan. In fact, I do not believe that we would meet our judicial responsibilities if we were to adopt either alternative.
Perry, J., concurs in this opinion.