Bickford v. Nolen

Hall, Justice,

dissenting.

I dissent because I believe that we should overrule the judge-made guest-passenger rule, even though I agree *259that it is constitutional. Its impracticality is reason enough to overrule it.

"The doctrine of stare decisis is usually interpreted to mean that the court should adhere to what it has previously decided and not disturb what is settled. It does not undercut the power of a court to overrule its previous decisions. On the contrary, it is a rule of policy tending to consistency and uniformity of decision and is not inflexible. The reason for the rule is more compelling in cases involving the interpretation of a statute.” Mitchell v. State, 239 Ga. 3, 6 (235 SE2d 509) (1977). See also Walker v. Walker, 122 Ga. App. 545, 546 (178 SE2d 465) (1970).

Unfortunately, "stare decisis” is often a mere facade to cover the court’s preference for the rule under consideration. If the court likes the precedent, stare decisis is involved with loud incantations; if it dislikes the precedent, the court dons the mantle of "justice” and charges forth with the rhetoric of a knight errant. Stripped of theatrics, the present issue boils down to a question of which way we want to go on the guest-passenger rule.

We should remember that the guest-passenger rule was created by three judges of the Court of Appeals in 1921 in Epps v. Parrish, 26 Ga. App. 399 (106 SE 297) (1921). That court now finds the rule to be wrong. Bickford v. Nolen, 142 Ga. App. 256 (235 SE2d 743) (1977). The only pronouncement by this court on the issue is a one sentence headnote in Holland v. Boyett, 212 Ga. 458 (2) (93 SE2d 662) (1956). There is no legislative involvement in this policy question, unlike our recent sovereign immunity cases (Clark v. State of Ga., 240 Ga. 188 (1977); Azizi v. Bd. of Regents of the State of Ga., 233 Ga. 487, 488 (212 SE2d 627) (1975)), and the strict liability cases (e.g., Ford Motor Co. v. Carter, 240 Ga. 657 (1977)). Stare decisis is hardly a reason to refuse to reconsider judge-made law which was based only on notions of policy, which is among the most mutable of concepts. As California’s Chief Justice Traynor has so aptly said, the question before the court is "to stare or not to stare” and that "depends on whether decisis is dead or alive.” Quoted in Aldisert, The Judicial Process 835 (1976). I think this one is dead, and I *260would so pronounce it.

The guest-passenger rule is contrary to the general common law established by decisions in the courts of thirty-one states.1 It has been properly criticized. As well as questioning the policy choice behind the rule, Prosser points out that: "There is perhaps no other group of statutes which have filled the courts with appeals on so many knotty little problems involving petty and otherwise entirely inconsequential points of law.” Prosser, The Law of Torts, p. 187 (4th Ed. 1971). Harper & James point out that these statutes are contrary to the "trend in the common law towards obliterating degrees of care and fashioning the law of negligence into a less imperfect means for securing compensation to accident victims.” 2 Harper & James, The Law of Torts, § 16.15, p. 961. They urge a strict interpretation of such statutes. They also note that if collusive suits are a threat, there is an equal threat of collusive suits involving dishonesty about the degree of driver negligence, and about whether the plaintiff was a "guest.”

John Frank has stated that accident litigation accounts for about 65 to 80 percent of all the civil cases in the United States, and points out the need to reduce and simplify decision points. See Frank, American Law — The Case For Radical Reform, 64-124 (1969). For example, the guest-passenger rule complicates the charge of the trial court and increases appellate decision points. Failure to act here exacerbates the trend to eventual removal of all automobile accident litigation from the courts.

The authorities cited above indicate that Georgia is the only state which adheres to a judicially created guest-passenger rule. The Wisconsin Supreme Court recognized that the rule is ill fitted to present day realities, and overruled its judicially created guest-passenger rule. McConville v. State Farm Mutual *261Auto. Ins. Co., 15 Wis. 2d 374 (113 NW2d 14) (1962). Judge Shulman noted in his opinion for the Court of Appeals in the instant case that the judicially created guest-passenger rule in Massachusetts was eliminated by the legislature of that state. Bickford v. Nolen, supra, at 257. We should follow suit.

The fact that a majority of states enacted guest-passenger statutes2 is more indicative of lobbying efforts by insurance companies than it is of good social policy. See Prosser, supra at 187. For other policy reasons against the rule see Judge Shulman’s opinion in Bickford, supra.

The majority opinion ignores all of the above empirical data and authorities. It assumes the provincial stance that Georgia is not out of step with the other judicatories of this country but that they are out of step with us. I would unshackle the trial court from prolix instructions to the jury and the Court of Appeals from frivolous enumerations of error on the guest-passenger rule. It has outlived whatever usefulness it ever had and deserves a decent burial. May it some day rest in peace.

Annot., 20 ALR 1014 (1922) as supplemented by 40 ALR 1338 (1926), 47 ALR 327 (1927), 51 ALR 581 (1927), 61 ALR 1252 (1929), 65. ALR 952 (1930). See 2 Harper & James, Torts, p. 950, § 16.15 (1956); 8 AmJur2d 35, Automobiles, § 471 (1963).

See Tonti v. Paglia, 171 Ohio St. 520 (172 NE2d 618, 620) (1961). See AmJur2d Desk Book, Document No. 123, for a list of statutes as of 1962.