(concurring).
In concurring, I nonetheless wish to say I think the concurring and dissenting opinion indulges an overgeneralization. It forewords its thesis with a declaration that the guest statute portends a “monstrous impudence,” — which historically has not been dubbed so, nor is the commentary any more Solomonic than the assertion that the legislature thereby took away “an existing remedy for an injury.”
The thesis of the dissent completely ignores such well established legal principles as defenses against any such injury by assumption of risk,1 contributory negligence, statutory limitations striking down certain causes of action, governmental immunity cases, those where claims are not timely filed, mutual combat incidents, inability to show a cause under res ipsa loquitur, injuries by acts of God, injuries occurring while trespassing, bumping into each other on main street, self-inflicted wounds, falling off a cliff, injuries even under the comparative negligence statutes where the percentage of negligence lies more heavily against the claimant, —and myriads of other noncompensable injuries.
The unrealistic interpretation of the dissent that the constitution provides compensation for “every injury done to his person” confuses such pronouncement, not only with the above mentioned examples, but the maxim “ubi jus, ibi remedium,” that has to do with righting a wrong, which is not defensible, and not with wronging a right with compensability simply because someone may be injured. Otherwise, a homeowner, the State, a mythical oyster or else would have to respond to a burglar, who, on breaking and entering breaks also his fundament.
The conclusion plugged for in the dissent might take most hitchhikers off the highways, but likewise would be a deterrent for those who might be generous enough to want to grant the request for transportation of one suffering a heart attack, of a drowning man seeking succor from a passing boatman or any number of million handicapped persons who may need a lift, and would be a willing erstwhile Good Samaritan, but who would prefer to let the next traveler take over the gamble of tort liability.
. A doctrine quite similar to that reflected in guest statutes.