Allen v. McLain

• Decision Date: 21 April 1953
• Docket Number: No. 9307,9307
• Citation: 74 S.D. 646,58 N.W.2d 232
• Parties: ALLEN v. McLAIN.
• Court: South Dakota Supreme Court

Page 232

58 N.W.2d 232

74 S.D. 646

ALLEN v. McLAIN.

No. 9307.

Supreme Court of South Dakota.

April 21, 1953.

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

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

RUDOLPH, Judge.

Plaintiff, while a guest passenger, in an automobile owned and allegedly operated by defendant was badly injured. This action was brought to recover damages. The jury returned a verdict for defendant, but the trial court granted a new trial. This appeal is from the order granting the new trial.

One of the grounds upon which the order granting the new trial is based is the insufficiency of the evidence to justify the verdict. Appellant recognizes the long established rule in this state which allows the trial court a broad discretion in granting a new trial because of insufficiency of the evidence. In cases where the verdict rests upon conflicting testimony and the credibility of witnesses is involved this discretion of the trial court in ordering a re-examination of an issue of fact will not be disturbed by this court on appeal. Johnson v. Olson, 70 S.D. 617, 20 N.W.2d 226; Houck v. Hult, 60 S.D. 570, 245 N.W. 469; Security State Bank of Beresford v. Bank of Centerville, 46 S.D. 440, 193 N.W. 670; Western Surety Co. v. Boettcher, 39 S.D. 541, 165 N.W. 381; Drew v. Lawrence, 37 S.D. 620, 159 N.W. 274.

Appellant, however, contends that giving the evidence in this case a construction most favorable to plaintiff, it will not support a verdict other than that returned by the jury.

Appellant summarizes the facts as follows:

'(1) The Plaintiff was riding as a guest in a 1950 Oldsmobile 88 sedan, with the Defendant driving all the way from Lake Preston to the scene of the accident, a distance of some eighty-five miles. (2) The trip was a fast one, taking from 75 to 90 minutes, with only one stop en route, this being in Arlington. The Defendant drove at times at speeds up to 95 and 100 miles per hour. (3) The Plaintiff had repeatedly asked the Defendant to slow down, which requests he ignored. She did not at any time ask to be let out of the car. (4) The Plaintiff did not have anything to drink that night, nor did the Defendant or Schanck drink in her presence. (5) The accident occurred on a dry, concrete highway, with no other traffic involved, when the Defendant's car, in approaching a gentle curve to the left, marked by a 'curve' sign located some three hundred feet from the beginning of the curve, ran off the paved portion of the highway and into the ditch, struck an embankment and overturned. (6) The curve which the Defendant 'missed' was of substantially the same character as a gentle curve north of Dell Rapids and others, which the Defendant had successfully negotiated at 95 to 100 miles per hour.'

Respondent adds the following to this summary:

'(1) That after plaintiff asked defendant to slow down he kept going faster and faster, going around curves so fast that the tires would screech and the car would lean; (2) The second time she asked him to slow down he looked at her as though she should not have said it, as though he was disgusted with her, and kept going faster. (3) The plaintiff begged defendant to slow down because she was so scared she didn't know what to do and he just kept right on going as fast as he could go, finally attaining a speed of 95 to 100 miles per hour.'

We accept this summarization as a statement of the facts.

The controlling statute of course is SDC 44.0362, which limits liability to a guest passenger to the 'willful and wanton misconduct of the owner or operator of such motor vehicle, * * *'. Commencing with Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, this statute has been before the court on numerous occasions. Melby v. Anderson, 64 S.D. 249, 266 N.W. 135; Martins v. Kueter, 65 S.D. 384, 274 N.W. 497; Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153; Elfert v. Witt, S.D., 38 N.W.2d 445; Stoll v. Wagaman, S.D., 40 N.W.2d 393; Antonen v. Swanson, S.D., 48 N.W.2d 161; Espeland v. Green, S.D., 54 N.W.2d 465.

We have adhered to the rule established in the Melby-Anderson case, which was affirmed by the legislature when in 1939 it deleted the term 'gross negligence' which appeared in the original statute, Ch. 147, Laws of 1933. With the deletion of the words 'gross negligence', the rule is stated as follows:

'Willful and wanton misconduct * * * means something more than negligence. They describe conduct which transcends negligence and is different in kind and characteristics. They describe conduct which partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong. To bring the conduct of the defendant within the prohibition of this statute the jury must find as a fact that defendant intentionally did something in the operation of a motor vehicle which he should not have done or...