Allen v. McLain

• Decision Date: 24 March 1955
• Docket Number: No. 9430-,9430-
• Citation: 69 N.W.2d 390,75 S.D. 520
• Parties: Alda Mae ALLEN (Now Alda Mae Lewison), Plaintiff and Respondent, v. Forrest McLAIN, Defendant and Appellant. a.
• Court: South Dakota Supreme Court

Page 390

69 N.W.2d 390

75 S.D. 520

Alda Mae ALLEN (Now Alda Mae Lewison), Plaintiff and Respondent, v. Forrest McLAIN, Defendant and Appellant.

No. 9430-a.

Supreme Court of South Dakota.

March 24, 1955.

Rehearing Denied May 20, 1955.

Lacey & Parliman, Sioux Falls, for plaintiff and respondent.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

LEEDOM, Judge.

This matter has been before the court previously. It is an action by a guest passenger against the owner of an automobile for damages arising from personal injuries sustained when the automobile overturned. When the case was first tried the jury returned a verdict for the defendant. The trial court then granted plaintiff's motion for a new trial. The first appeal was by the defendant from that order. We affirmed the order for a new trial. Our decision in that connection is reported in 74 S.D. 646, 58 N.W.2d 232. Reference is made to the former decision for a comprehensive summarization of the facts.

On the second trial the jury returned a substantial verdict for the plaintiff and the defendant has now appealed from the judgment entered on the verdict and from the order of the trial court denying defendant's motion for a new trial.

In our first decision we held that the evidence, viewed in the light most favorable to plaintiff, was sufficient to show willful and wanton misconduct on the part of defendant as driver of the automobile at the time of the accident. Appellant, now conceding that the evidence on this point in the second trial is substantially the same as in the first trial, does not argue extensively that the evidence is insufficient to support a finding of willful and wanton misconduct on the part of appellant if he was the driver but again merely affirms the original position that such evidence does not actually sustain such finding. On this point we adhere to our former decision. Assuming that the defendant was driving the car at the time of the accident it is our view the evidence does sustain a finding of willful and wanton misconduct on his part.

Appellant's assignments of error in this appeal question the propriety of the instructions given by the judge to the jury and also the propriety of numerous rulings on admission and rejection of evidence. One of the issues in dispute in the second trial, as well as in the first, was whether appellant, the owner of the car, was driving at the time or whether he had relinquished the wheel to a third occupant, Charles Schanck. The position of appellant on the court's instructions was well stated by appellant's counsel in his final exception thereto, taken at the time of the trial. He said: 'The defendant objects to the Court's proposed instructions in their entirety for the reason that, taken together, they allow the Jury; first, to assume that mere negligence as distinguished from willful and wanton misconduct, would be sufficient ground for a recovery by the plaintiff in this case. Second: that said instructions, taken together, allow the jury to assume that no matter who was driving the car at the time of the accident, if some one, either Forrest McLain or Charles Schanck, was guilty of mere negligence or of willful and wanton misconduct, that the plaintiff would be entitled to recover against the defendant Forrest McLain.'

We deal first with the contention that the trial court confused the jury and prejudiced appellant's case by injecting into the instructions numerous provisions concerning liability for mere negligence as distinguished from willful and wanton misconduct. It is our view that the instructions given by the trial judge deal much more extensively than they should with the law of liability based on mere negligence. As the trial of the case developed, if not at the inception of the litigation, it was clear that the plaintiff, respondent here, occupied the position of a guest in the automobile and that her right to recover would depend on ability to prove willful and wanton misconduct on the part of appellant. There could be no liability growing out of mere negligence as if there had been a jury question as to whether or not plaintiff was a guest. Admittedly the instructions in several places contain language that deals with liability growing out of ordinary negligence. Appellant contends this language led the jury to believe that ordinary negligence would render appellant liable without a finding of willful and wanton misconduct.

In this connection appellant relies most heavily on two recent Colorado cases, Pettingell v. Moede, Colo., 271 P.2d 1038, and Lewis v. Oliver, Colo., 271 P.2d 1055. Whether any one instruction is prejudicial must be determined by a consideration of all the instructions in their entirety. It is difficult to make an exact comparison of any given instruction in one case with a similar instruction in another case because of the influence of all of the other instructions in each of the two cases on the minds of the jury. We believe however it is fair to say, judging from the language of the Colorado Court in the two cases above cited, that if the instructions in this case were before the Colorado Court they would likely hold the repeated reference to liability arising from ordinary negligence to be prejudicial error. We however do not reach this conclusion. Notwithstanding the distinctions between negligence and wanton and willful misconduct the latter is necessarily a departure from approved conduct and has this characteristic in common with negligence. Thus conduct that culminates as willful and wanton may be negligence in its inception. There is therefore a tendency, and in some instances a necessity, to deal with negligence in instructing a jury in a guest case. Great care should be taken however to make clear that liability could not be predicated on acts of negligence alone, and emphasis should be placed on the essential elements of willful and wanton misconduct. While we find the language appearing in these instructions highly objectionable in this respect we believe they did not confuse the jury on the point that liability depended on willful and wanton misconduct. The instructions set out SDC 44.0362, the 'guest' statute, and in several instances clearly and expressly advise the jury that liability could not be established against appellant unless he be found guilty of willful and wanton misconduct. The instructions also define willful and wanton misconduct in language predicated substantially upon language of this court. While appellant is critical of such definition in numerous respects we find no fatal departure from the law as laid down by the decisions in this jurisdiction. We conclude these instructions did not result in reversible error.

The court instructed in effect that it made no difference whether Schanck or appellant was driving if the jury found the driver guilty of willful and wanton misconduct, inasmuch as Schanck's conduct under the circumstances would be imputed to appellant, the owner of the car. Appellant objects on two grounds (1) that there was nothing in the record to show Schanck guilty of wanton and willful misconduct and (2) it was error to charge as a matter of law that appellant should be charged with Schanck's willful misconduct. Very able counsel for appellant cite no authority on this point and rest on argument alone. They say in the brief:

'Let us assume for the moment that from Lake Preston to a point south of Dell Rapids Forrest McLain drove the car exactly as Alda Mae claimed he did; that at times he drove at speeds up to 95 [75 S.D. 526] and 100 miles per hour; that Alda Mae repeatedly asked him to slow down, but that he ignored her requests and kept going faster and faster. Then let us assume that McLain did stop at Renner Corner at Alda Mae's request, and that from Renner Corner on Charles Schanck took over the driving of the car, as McLain testified, * * *'.

The support of the latter proposition, that Schanck took over the driving, comes only from testimony of appellant and his witnesses. It also is in direct conflict with respondent's testimony. Appellant's position here on this phase of the case rests on the validity of his assumption that the jury believed Schanck was driving. If the jury found that appellant was driving, submitting the question of Schanck's willful and wanton misconduct and imputing such conduct to appellant, even though erroneous, would be harmless error because such matters would then be completely outside the jury's consideration.

If there is validity to the proposition that the jury found Schanck to be the driver it must be assumed that they believed a part of respondent's testimony, the part that brought the parties as far as Renner Corner, otherwise there would be no basis whatever for the verdict in her favor. It would then be necessary for the jury to disbelieve respondent's recital of events from Renner Corner on to the scene of the accident. In like manner they would have to believe part and disbelieve part of appellant's testimony. The dispute in the testimony of these two litigants was sharp and wide. It would be wholly unrealistic to assume the jury did other than accept one story or the other essentially in toto. There is no rational basis for reconciling the conflict by accepting part of one story and another part of the other story on the basis of mere mistake or different shades of meaning. Belief in part of one version would quite necessarily brand false all material parts of the other version. Since the verdict is general and in respondent's favor, supported as we have indicated by the evidence if appellant was the driver, the only reasonable conclusion is that the jury accepted respondent's testimony as true and believed appellant was the driver.

There are still other circumstances disclosed by the record which support the conclusion that the jury found appellant, rather than Schanck, to be the driver. As stated, appellant...