Zink v. Kessler Trucking Co.

190 A. 637, 38 Del. 271, 8 W.W. Harr. 271, 1937 Del. LEXIS 28

• Court: Superior Court of Delaware
• Decided: January 8, 1937
• Docket: Nos. 109, 110, 111 & 112
• Status: Published

Opinions

Layton, C. J.,

delivering the opinion of the Court:

The demurrers to the first count of the several declarations must be sustained for the reason that no actionable negligences are alleged. It is to be presumed that the pleaders have stated their cases in the manner most favorable to themselves. Schwartzman v. Wilmington Stores Co., 2 W. W. Harr. (32 Del.) 7, 117 A. 739; Snavely v. Booth, et al., 6 W. W. Harr. (36 Del.) 378, 176 A. 649. The negligence alleged is the parking of the truck, which had not become disabled, on the improved or main traveled portion of the highway when it was practicable to park the truck off of that portion of the highway, and in such manner as not to leave thereupon opposite the truck a clear and unobstructed width of not less than 15 feet, and so that a clear view of the truck could not be obtained from a distance of 200 feet in the direction from which the automobile was approaching. There is no averment that by reason of existing circumstances and conditions the driver of the automobile could not see the truck in time to have avoided the collision.

The violation of the statute constituted, of course, negligence per se, but the violation became an actionable wrong only if the injuries complained of resulted proximately therefrom. Generally the negligence of the operator of an automobile is not imputed to a passenger, but if the operator could have seen, or in the exercise of reasonable care, should have seeen, the truck in time to render abortive the defendant’s negligence, his negligence, in such case would constitute the proximate or effective legal cause of the collision and resulting injuries. See Island Express v. Frederick, 5 W. W. Harr. (35 Del.) 569, 171 A. 181. All that is alleged is that, by reason of the failure of the defendants to obey the provisions of the statute, the front of the automobile came in contact with the rear of the truck, whereby the death occurred. A material factor is the inability of the operator to see the truck in time to avoid the collision. The inability to see, of course, may have been due to the fact that, in the circumstances, a clear view of the truck could not be had from a distance of 200 feet, but it is elementary that facts should be averred directly and positively and not by way of inference or conclusion.

The second counts are based upon the statute requiring,. during certain hours and in certain conditions, the display upon parked vehicles of a lamp projecting a red light visible under normal atmospheric conditions from a distance of 500 feet to the rear of the vehicle. These counts allege the failure to display the required light, and aver that by reason thereof the driver of the automobile was not warned of the presence of the truck parked upon the highway. The defendants urge that the phrase “was not warned,” is not synonymous with an allegation that the driver did not know of the presence of the truck. Good pleading requires reasonable certainty and precision in order that the oppsoite party may know what he must meet at the trial. The word “warn” means notice, information or intimation of approaching or probable danger. The averments inform the defendants that by reason of their failure to display the lights as required by law, the driver of the automobile was not given notice of the presence of the truck upon the highway, as a result of which the collision occurred. The causal connection between the violation of the statute and the injuries sufficiently appears. No useful purpose is served by an insistence upon mere technicality. See State v. Benton (Del. O. & T.), supra 1, 187 A. 609.

The same objection is made to the fourth counts based upon requirements as to clearance lights, and what has been said with respect to the objection to the second counts is applicable. The demurrers to the second and fourth counts are overruled.

The third counts allege the failure of the truck to carry at the rear thereof a lamp of a type approved by the Commissioner, exhibiting a red light plainly visible from a distance of 500 feet to the rear thereof. These counts cannot "be sustained. We are not dealing with that aspect of the statute which provides for punishment for the failure to carry a lamp of a type approved by the Commissioner. Our concern is to examine the pleadings to see whether there is averred a causal connection between the violation of the statute and the injuries for which recompense is sought. As an administrative measure, conducive generally to the public safety, it is entirely proper that the Commissioner have the power to approve or disapprove types of lamps to be carried on vehicles using the public highways as a means of prevention against the use of inefficient types, but the efficiency of the light, or the lack thereof, is to be found in the lamp, not in the Commissioner’s conclusion. The approval or disapproval, of itself, has nothing to do with causation. If the lights carried do not attain the standard of efficiency required by the statute, the Commissioner’s approval will not supply the deficiency; and, conversely, if the lights do attain such standard, it cannot be said that the non-approval thereof has lessened their efficiency as a warning of danger. If the counts in question are sufficient it follows that the defendants may be held liable to respond in damages for consequences which do not result from a failure to employ an efficient lamp, but from the fact that the particular type of lamp has not received approval, although in all respects the lamp may be of equal or greater efficiency when compared with those which have been approved. The pleader has based the cause of action upon his conception of the statute. His theory seems to be that a cause of action accrued to the plaintiffs by reason of the failure of the defendants to carry lamps of an approved type, notwithstanding the light projected therefrom may have been visible from the required distance. It is not every violation of law that will give rise to an action for damage, for where the injuries for which compensation is sought cannot be traced proximately to the violation of law, there can be no recovery. See Lindsay v. Cecchi, 3 Boyce 133, 80 A. 523, 35 L. R. A. (N. S.) 699.

By the demurrers to the fifth counts the constitutionality of Chapter 23, Vol. 38, Laws of Delaware, commonly known as the “Flare Statute,” is questioned as constituting a denial of the equal protection of the laws under the Fourteenth Amendment of the Federal Constitution.

The Fourteenth Amendment forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” The way of escape from the prohibition is by classification. Chicago, Milwaukee & St. Paul Ry. Co. v. Westby (C. C. A.), 178 F. 619, 47 L. R. A. (N. S.) 97. The cases are multitudinous. It is not the formula, but the application of it to a concrete case, that causes difficulty.

In Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912 C, 160, rules derived from repeated decisions of the court are stated for testing the contention of denial of equality before the law. Shortly stated they are: 1. The equal protection clause does not take from, the State the power- to classify in the adoption of police laws, if done upon some reasonable basis, and not purely arbitrary. 2. Such reasonable basis does not demand mathematical nicety or absolute equality. 3. When classification is questioned, if any state of facts reasonably can be conceived that would sustain it, the existence thereof must be assumed. 4. The burden is upon him who assails the classification to show its unreasonableness.

The plaintiffs rely largely upon certain decisions of the Supreme Court of the United States. These will be considered briefly.

In Patsone v. Pennsylvania, 232 U. S. 138, 34 S. Ct. 281, 58 L. Ed. 539, there was under review a statute of Pennsylvania prohibiting the killing of any wild bird or animal by unnaturalized foreign born residents, and to that end, making it unlawful for any such person to own or be possessed of a shot gun or rifle.

The statute was upheld, the Chief Justice dissenting. It was admitted that the discrimination presented a difficult question. The reasoning was> this: A State may classify with reference to the evil to be prevented, and if the class discriminated against reasonably may be considered to define those from whom the evil mainly is to be feared, it may properly be selected. A lack of abstract symmetry does not matter, for the question is a practical one dependent upon experience. It is not enough to say that others may do the same thing and go unpunished, if it is found that danger is characteristic of the class named. It was emphasized that the subject of discussion was wild game which the State may preserve for its own citizens, and it was concluded that the court could not say that the legislature of Pennsylvania was not warranted in assuming that resident unnaturalized aliens were less interested in the preservation of wild game than were citizens, and therefore a peculiar source of evil at which legislation might be directed. It was enough that the Court had no such knowledge of local conditions as to be able to say that the legislature was manifestly wrong.

In Sproles et al. v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167, a statute of Texas, designed to protect highways by limiting the width, length and load of motor vehicles, was before the Court. Certain machinery and implements of husbandry were exempted for short hauls. This exemption was held reasonable having in mind the purpose of the statute and the necessities of the case. Passenger buses were exempted from the operation of the statute with respect to weight limitation, and it was contended that this discrimination was unreasonable and arbitrary, and rendered the act unconstitutional, for the reason that damage to highways was as great from a load of persons as from a load of freight.

The Court said that this consideration would be controlling if there was no other reasonable basis for classification than the mere matter of weight, but in passing upon the constitutional power of the State to frame highway regulations, the fact could not be ignored that the State has a distinct public interest in the transportation of persons, to provide its communities with resources both of employment and recreation, and to foster varied social and educational interests dependent upon freedom of intercourse through safe and accessible facilities; and that such considerations were sufficient to support a classification, of passenger traffic as distinct from freight.

In Keokee Consolidated Coke Co. v. Taylor, 234 U. S. 224, 34 S. Ct. 856, 58 L. Ed. 1288, a statute of West Virginia was considered. The statute forbade any person or company engaged in mining coal or ore, or manufacturing iron or steel, to issue for payment of labor any order, unless it purported to be redeemable on its face in lawful money. It was urged that the act discriminated unconstitutionally against certain classes. The Court, however, said that it was established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court could see. That was for the legislature to judge unless the case was very clear, so that the suggestion that others,' besides mining and manufacturing companies, might keep shops and pay their workmen with orders on themselves for merchandise was not enough to overthrow- a law that must be presumed to be deemed by the legislature coextensive with the practical need.

In Miller v. Wilson, 236 U. S. 373, 35 S. Ct. 342, 59 L. Ed. 628, L. R. A. 1915 F. 829, the Court had under review a statute of California forbidding employment of females for more than eight hours a day in any manufacturing, mechanical, or mercantile establishment, laundry, hotel, or restaurant or telegraph or telephone establishment or office, or by any express or transportation company. The statute expressly exempted women employed in the harvesting, curing, canning, or drying of any variety of perishable fruit or vegetable. Impliedly were exempted women employed in boarding and lodging houses, domestic servants, and stenographers, clerks and assistants employed by professional classes. The case arose over the employment of a chambermaid in a hotel. The Court said that the legislature was not debarred from classifying according to general considerations and with regard to prevailing conditions; that hotels, as a class, maintain a special organization to supply a distinct and exacting service; that the female employees are, for the most part, chambermaids and waitresses, and that it could not be said that the conditions of work were identical with these which obtain in establishments of a different character, or that it was beyond the legislative power to recognize the existing differences, so that the legislature was free to recognize degrees of harm, and it might confine its restrictions to those classes of cases where the need was deemed to be the clearest.

In Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 74 L. Ed. , 65 A. L. R. 939, a statute of Connecticut, denying recovery to gratuitous passengers in automobiles for injury, death or loss arising out of the negligence of the owners or operators thereof except in the cases of intentional accidents, heedlessness, or reckless disregard of the rights of others, was upheld. There the Court held that, in this day of almost universal highway transportation by motor car, it could not say that abuses originating in the multiplicity of suits growing out of the gratuitous carriage of passengers do not present so conspicuous an example of what the legislature may regard as an evil as to justify legislation aimed at it, even though some abuses may not be hit.

A similar statute was upheld by this Court in Gallegher v. Davis, 7 W. W. Harr. (37 Del.) 380, 183 A. 620.

It is quite clear from the authorities that the “equal protection” clause of the Fourteenth Amendment does not debar the State from the exercise of a wide discretion in classification in the adoption of police laws. The plaintiffs, however, have laid emphasis upon certain expressions culled from the opinions in the cited cases. For example, it is said that the legislative act need not be all embracing; that it need not cover the whole field of possible abuses; that a lack of abstract symmetry does not matter; that the legislature is not held rigidly to the choice of regulating all or none; and that a legislative act is not to be upset by thinking up and enumerating instances to which it might have been applied equally well.

These expressions do not stand alone as expressive of a rule. They must be considered in the light of the settings in which they were uttered, and they are all predicated upon the principle that the classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the things with respect to which the classification is imposed. Where the classification is reasonable, and not arbitrary, and rests upon some ground of difference having a fair and substantial relation to the object of legislation, so that all persons similarly circumstanced shall be treated alike, the fact that the legislation does not cover the whole field of possible evils will not render the act void.

In each of the cited cases there was “a peculiar source of evil” against which the legislation was directed, either easily recognizable, or of such nature that the reviewing Court could not say that the legislature was manifestly wrong.

The evil aimed at' by the statute here attacked was the personal injuries, loss of life and destruction of property caused by striking obstructions in the public highways. The act was made applicable to motor trucks and motor buses only. Trucks were not classified with respect to length, width, size or weight. The statutory definition of “highway” is “every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel.” Section 1 (u), Chapter 10, Vol. 36. The Act, consequently, applies to the whole of the highway, not merely to the paved, or improved or main traveled portion. The effect of the statute was to subject to criminal punishment and to civil liability the operator of a motor truck or motor bus who should fail to put out, within the specified time, torches or lights as required, while operators of other vehicles' on the highways, were relieved of like consequences.

Trucks generally may be defined as wheeled vehicles for the carrying of heavy loads. But, in considering the fact of obstructions in a highway as constituting an evil, the term, “heavy” is relative and means little. So, the question is whether the stopping of trucks and buses within the limits of a highway can reasonably be said to constitute a peculiar source of evil at which the legislature may be permitted to strike because, from experience, it was with respect to them that the evil was most felt, or from which the evil to be prevented was mainly to be feared.

Thq plaintiffs concede that trucks and buses are no more likely to become disabled on the highways than ordinary pleasure cars, but they suggest as reasonable bases for classification that, due to their weight, it is not easy, and sometimes impossible, to move them off the road in order to repair them, and certainly, they cannot be readily pushed off the road within three minutes, as pleasure cars may be; that a collison with a parked truck or bus is likely to result in greater damage to property and to be attended with more fatal results, than wouud result from collison with a vehicle of less weight; and that since the parking of trucks on the highway is frequently necessary to enable their operators to rest while making long runs, and since it is sometimes necessary to park buses on highways for schedule or connection purposes, the parking of them on the highways is more to be anticipated that is the case with pleasure cars whose operators usually are making short trips and need not to rest, or are going somewhere for amusement, and, therefore, are not so likely to park their cars on the highways, or, if they do, will park them on the side of the road.

It is impossible to accept these suggestions as reasonable bases for the discriminatory legislation.

The statute applies to the whole highway, not to the improved or main traveled portion of it, and this without exception or qualification. Trucks and buses are not classified as to kind, character, size or weight. Their operators are not relieved of the consequences imposed by the statute for the failure to set the required lights even if they park their vehicles entirely off the main traveled portion of the highway. Having in mind the statutory definition of “highway,” clearly the court may not construe the word to mean the improved, paved or main traveled portion of it.

The usual small pleasure car is a ton and a half in weight. Some large cars weigh twice as much. Many pleasure cars are as heavy as many trucks. All are of a sufficient size and weight as to constitute dangerous obstructions in the highway. Instances of collisions with pleasure cars parked in the highway resulting in the practical ruin of the vehicles and in deaths of the occupants are so numerous that it is impossible to regard difference in weight as a reasonable basis for the classification made by the statute. Nor may it be said that pleasure cars are parked on the highway less frequently than are trucks and buses. We cannot be blind to the fact that, for whatever purpose, pleasure cars are to be found parked within the limits of the highways constantly and numerously.

It is conceded that constitutional limitations are not so rigid as preclude a practical application of the legislative power, and it is also conceded that, under the police power, the question of classification is for legislative determination unless the case is clear. Classification means a natural grouping of persons or things because of inherent characteristics which serve to distinguish the group from other persons or things. Substantial equality before the law is demanded by natural justice and by constitutional provisions. The legislature may not, therefore, split in two a natural class of persons and things, capriciously designate the severed parts as classes, and enact different rules for the government of each.

If the statute is to be upheld the court must be able to say that it is reasonable to conceive that trucks and buses at rest on the highway during the precribed hours of darkness, although showing the statutory warning lights, are a greater menace than other motor vehicles of, perhaps, similar size, width, weight and contour, and that they constitute a peculiar source of evil. Experience does not lead to that conclusion. All kinds and classes of motor vehicles are found at rest on the highways. All are of sufficient size and weight as to constitute dangerous obstructions. The statute permits the operator of a pleasure car, regardless of weight or size, to remain at rest on the highways from dusk to dawn without penalty, criminal or civil, if equipped with the statutory warning lights. In the same circumstances it subjects to criminal punishment and, perhaps, to civil liability, the operator of a truck or bus of whatever size, weight, or shape unless additional warning lights are placed. The class of obstructions, equally dangerous, is split in two. Those responsible for the one class of obstruction suffer no penalty, while those causing the other class are punished criminally, and also may be subjected to civil liability arising out of negligence in law. The attempted classification is capricious and arbitrary, and cannot be sustained.

In Consumers’ Co. v. Chicago, 298 Ill. 339, 131 N. E. 628, a city ordinance required motor vehicles of 1500 pounds capacity or more, designed for carrying freight and merchandise, to be equipped with a fender in front to prevent injury to pedestrians.

The court declared the ordinance to be void. It said that while classification in certain bounds was lawful, yet the classification must be based upon some substantial difference which bears a proper relation to the classification ; but that with respect to the matter before it, it clearly appeared that there was no characteristic difference, so far as the object sought to be accomplished was concerned, between trucks with a capacity of 1500 pounds or more and the smaller trucks and passenger cars and various types of special motor vehicles; that the ordinance unreasonably discriminated between persons similarly situated, and was in violation of the State and Federal Constitutional provisions.

In Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 587, 75 L. Ed. 1264, a Florida Statute defined “auto transportation companies” so as to include both common and private motor carriers for compensation over public highways between fixed termini or over regular route, but excepted, inter alla, those engaged exclusively in transporting agricultural, horticultural, dairy or other farm products, and fish, oysters and shrimp from the point of production to the assembling or .shipping point en route to primary markets. It required the carriers coming within its provisions to obtain certificates of public convenience and necessity, .and to give a bond or insurance policy for the protection of the public against injuries, and of persons and property carried.

The statute was held to be unconstitutional. The Court affirmed the principle that the State, has a broad discretion in classification in the exercise of its power of regulation, subject, however, to the interposition of the constitutional guaranty of equal protection of the laws against arbitrary discriminations. “In the present instance,” it said, “the regulation as to the giving of a bond or insurance policy to protect the public generally, in order to be sustained, must be deemed to relate to the public safety. This is a matter of grave concern as the highways become increasingly crowded with motor vehicles, and we entertain no doubt of the power of the state to insist upon suitable protection for the public against injuries through the operations on its highways of carriers for hire, whether they are common carriers or private carriers. But, in establishing such a regulation, there does not appear to be the slightest justification for making a distinction between those who carry for hire farm products, or milk or butter, or fish or oysters, and those who carry for hire bread or sugar, or tea or coffee.” The Court concluded that the discrimination made by the statute was wholly arbitrary, as being a classification not based on anything having relation to the purpose for which it was made.

It will serve no useful purpose to comment upon the many authorities cited by the defendants in support of their contention. They are Chicago, Milwaukee & St. Paul Ry. Co. v. Westby, supra; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 17 S. Ct. 255, 41 L. Ed. 666; Royster Guano Co. v. Virginia, 253 U. S. 412, 40 S. Ct. 560, 64 L. Ed. 989; Southwestern Bell Telephone Co. v. Middlekamp (D. C.), 1 F. (2d) 563; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 46 L. Ed. 679; State v. Le Barron, 24 Wyo. 519, 162 P. 265, Ann. Cas. 1918 D, 998; State ex rel. Greenberg v. Erickson, 159 Minn. 287, 198 N. W. 1000; Haynes v. Lapeer Circuit Judge, 201 Mich. 138, 166 N. W. 938, L. R. A. 1918 5, 233; State v. Osborne, 171 Iowa 678, 154 N. W. 294, Ann. Cas. 1917 E, 497; Consumers’ Co. v. Chicago, 298 Ill. 339, 131 N. E. 628; Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S. W. 293, 16 L. R. A. (N. S.) 1035; 6 R. C. L. title, Const. Law, §§ 374, 375.

The demurrers to the fifth counts are sustained.