Thomas v. Union Pacific Railroad Company

548 P.2d 621, 1976 Utah LEXIS 795

• Court: Utah Supreme Court
• Decided: April 6, 1976
• Docket: 14224
• Status: Published

Opinions

TUCKETT, Justice:

This is a wrongful death action wherein the plaintiffs seek to recover for the deaths of Penna Lee Thomas and Janna Lee Thomas, who were killed in an automobile collision when an automobile in which they were riding ran into the side of a moving train. Decedents were riding in an automobile being operated by the defendant Carol Payne Hansen. The plaintiffs claim that both the Railroad Company and the operator of the automobile were guilty of negligence. The trial court granted the motion of Carol Payne Hansen and entered a summary judgment in her favor on the ground and for the reason that the plaintiffs’ claim against the defendant Hansen was barred by the Utah Guest Statute. The plaintiffs are here seeking a reversal.

On March 8, 1972, an automobile being driven by Carol Payne Hansen collided with a Union Pacific train at a grade crossing. Penna Lee Thomas and Janna Lee Thomas, the 22-month-old daughter of Penna Lee and Jay A. Thomas, were passengers in the automobile. Penna Lee Thomas and the infant child were killed in the collision. Penna Lee Thomas and the child Janna Lee Thomas were survived by Jay A. Thomas, and an infant daughter Jessica May Thomas. The trial court found that the conduct of Carol Payne Hansen did not constitute wilful misconduct.

The plaintiffs assert that the Utah State Guest Statute is unconstitutional as being in violation of the equal protection clauses of both the federal and state constitutions. During recent years the guest statutes adopted by a large number of states over the years have been under assault in the courts as well as in the legislatures. The statutes of a number of states have been stricken down by the courts, and several have been repealed by the legislatures. The constitutionality of the act was before this court in the recent case of Cannon v. Oviatt,1 wherein this court upheld the constitutionality of the guest statute. We are now of the opinion that a re-examination of the act should be left to the legislature.

However, there is another facet of the act which requires our further attention. Section 41-9-1, U.C.A.1953, provides in part as follows:

Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the state of Utah, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. [Emphasis added.]

From the language of the law it clearly appears that a passenger in order to become a guest must accept a ride in the host’s automobile. The act of acceptance requires an act on the part of the guest to either accept the ride or to refuse it. It therefore appears that there becomes an issue of fact as to whether or not the passenger accepted the ride. In this case it goes without saying that the 22-month-old Janna Lee Thomas was of such a tender age that she could not accept a ride and could therefore not become a guest within the meaning of the guest statute as above set forth.

This case is remanded to the court below with directions to reinstate the plaintiffs’ case as to the claim for the wrongful death of Janna Lee Thomas. The judgment of the court below is affirmed as to that part of the case dealing with the wrongful death of Penna Lee Thomas. No costs awarded.

1 . (Utah) 520 P.2d 883.