Antonen v. Swanson

• Decision Date: 22 May 1951
• Docket Number: 9083,9144
• Parties: ANTONEN, Appellant, v. CARLIE M. SWANSON, Richard Leo Plouf, Sr., Richard Leo Plouf, Jr., and Mercantile Co., Respondents.
• Court: South Dakota Supreme Court

74 S.D. 1, 48 N.W.2d 161 (1951)

ANTONEN, Appellant v CARLIE M. SWANSON, Richard Leo Plouf, Sr., Richard Leo Plouf, Jr., and Mercantile Co.

Respondents

South Dakota Supreme Court

Appeal from Circuit Court, Hamlin County, SD

Hon. W. W. Knight, Judge

#9083, #9144—Reversed in part; Affirmed in part

Walter Stover, O. E. Beardsley, Watertown, SD

Attorneys for Appellant.

McFarland & Paterson, Watertown, SD

Attorneys for Respondent Carlie M. Swanson.

Robert C. Heege, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD

Attorney for Respondents Richard Leo Plouf, Sr., Richard Leo Plouf, Jr., and Mercantile Co.

Opinion Filed May 22, 1951; Rehearing Denied Jul 26, 1951

ROBERTS, Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff while riding in a truck owned by defendant Richard Leo Plouf, Sr., doing business as the Mercantile Company, and being driven at the time of the accident by defendant Carlie M. Swanson.

It is alleged in the complaint that plaintiff at the time in question was a passenger in the truck and the acts of negligence as set out therein are that "defendant Carlie M. Swanson at said time had lost a great deal of sleep, was consciously groggy from loss of sleep, and was consciously unfit physically to drive said truck, but despite his physical condition the said defendant Carlie M. Swanson failed to take any steps to relieve himself from said groggy condition and continued to drive the said motor vehicle without notifying the plaintiff of said condition, and willfully and wantonly persisted in driving the same, and while doing so lost consciousness and ran the said truck into the abutment of a bridge at the edge of the highway upon which the said truck was being driven by the said defendant Carlie M. Swanson.

Defendants, by separate answers, put in issue the material allegations of the complaint.

At the close of plaintiff's case, counsel for defendants challenged the sufficiency of plaintiff's evidence upon the grounds that there was no evidence that the accident was caused by the willful and wanton misconduct of the driver of the truck, that as to the owner there was no evidence that the driver of the truck was acting within the scope of his employment in permitting plaintiff to ride and that plaintiff's contributory negligence barred recovery. The trial court sustained the motions for directed verdict. An appeal from the judgment of dismissal on the merits was perfected by plaintiff on May 7, 1949, and an order was served upon the court reporter for a transcript of the testimony. The transcript and assignments of error were served upon the defendants on September 13, 1949. Defendants then moved to exclude from the record the transcript and assignments of error on the ground that plaintiff did not serve the same as required by S.D.C. 33.0736 upon defendants within ten days after delivery thereof on May 25, 1949. A counter motion was then made by plaintiff to extend the time within which to serve and file transcript and assignments of error. After hearing, orders were entered denying the motion to strike and granting motion to extend the time to the date of actual service. This court granted petition for the allowance of appeals from these orders.

We will first consider and determine the procedural questions presented on the appeals from the orders.

Affidavits were filed by counsel for plaintiff showing that Mr. Stover who handled the appeal from the judgment suffered from a heart disease which incapacitated him from attending to the duties of his practice much of the time from the latter part of May until the fore part of September, 1949, and this showing was substantiated by affidavits of an attending physician. S.D.C. 33.0108, classified by the chapter heading as a general provision relating to practice and procedure, provides that the court may "in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this title (Judicial Procedure, Civil), or by an order enlarge such time." The power conferred by this section is discretionary and the determination of the trial court will not be disturbed except in cases where the court has clearly abused its discretion. This court said in Smith v. Atlas Elevator Co., 54 S.D. 373, 223 N.W. 319, where notice of intention to move for a new trial was not served within the time prescribed by statute, that the illness of an attorney may be of such nature as to furnish good cause for an extension of time. There appears upon the facts presented herein and on the whole record no abuse of discretion. The appeal was taken promptly and there was no serious delay or resulting disadvantage to the defendants.

In coming to this conclusion, we are not unmindful of the provision of S.D.C. 33.0729 relating to relief from an omission caused by mistake or accident to do any art necessary to perfect or make an appeal effectual. There is another section, S.D.C. 33.1610, which provides that the "Court or Judge upon good cause shown may extend the time within which any of the acts required by this chapter (New Trials: Records; Exhibits) may be done; or may, after the time limitation therefor has expired, fix another time within which any of such acts may be done". S.D.C. 3 3.0108 is general in its application. It is a rule of statutory construction that where a general statute covering an entire matter is so inconsistent to a special statute covering some particular part thereof that effect cannot be reasonably given to both the latter is to be read as an exception to the former. See State v. Mudie, 22 S.D. 41, 115 N.W. 107. Section 33.1610 provides that the time for presenting an application for new trial shall not be extended beyond the time limited by statute for appealing from the judgment. It could not be plausibly argued for instance that Section 33.0108 authorizes a court to extend the time of hearing beyond such limitation. There may be other like situations, but we find no provision in Sections 33.0729 and 33.1610 that takes precedence as affecting the authority of the court in the instant case to extend the time within which to serve transcript and assignments of error.

Plaintiff's Appeal.

As hereinbefore stated, the truck involved in the accident was owned by defendant Richard Leo Plouf, Sr. The record discloses that defendant Richard Leo Plouf, Jr., at the time of the accident had no interest in the business known as the "Mercantile Company" and the direction of the verdict in this favor is not challenged on appeal.

We will first consider the question of the liability of the driver of the truck. The evidence shows without conflict that defendant Swanson while driving the truck of his employer fell asleep and the truck swerved to the left side of the highway and struck a concrete abutment extending three or four feet above the surface of the highway at the end of a culvert. Plaintiff sustained serious injuries. Counsel for plaintiff assert that the evidence shows "that the defendant Carlie M. Swanson was sleepy prior to the accident and that prior to his arrival in Lake Norden had to sing in order to keep himself awake. The evidence al so shows that prior to the accident the defendant Carlie M. Swanson's wife was ill and said defendant suffered from loss of sleep. The evidence further shows that the defendant Carlie M. Swanson did not feel well, but that he felt groggy, tired, and sick. The defendant Carlie M. Swanson did not advise the plaintiff that he was sick and that he had a malarial condition, but merely told the plaintiff that he was tired. Defendant Carlie M. Swanson drove the Mercantile Company truck easterly on the gravel road from Hayti, South Dakota, and stopped at Alsville to deliver further groceries. Still accompanied by the plaintiff, he drove north on South Dakota Highway 28 which is a gravel-surface road, whereupon he turned east to go to Stone Bridge, which is located at Lake Poinsett. A further delivery was to be made at Neiland's Resort. There was no indication to the plaintiff that the defendant Carlie M. Swanson was in any way driving negligently nor was there indication to the plaintiff that the defendant Carlie M. Swanson was sleepy or sick at the time of the accident or just prior thereto. As they proceeded easterly on the gravel road the truck suddenly veered to the north side of the road. The plaintiff hollered and the truck struck the north abutment of a bridge or culvert. Defendant Swanson says, 'It is very vague, but evidently I was either—had gone to sleep or else into a subconscious state of mind.'" Accepting this version of the evidence as to how the accident occurred, counsel for defendants contend that no willful and wanton misconduct is shown and the direction of a verdict was proper.

The authorities agree that a motorist falling asleep while driving is guilty of negligence. In Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 434, 44 A.L.R. 785, a leading case on this question, the court said:

"In such a case, the question must be, Was the defendant negligent in permitting himself to fall asleep? Helton v. Alabama Midland Ry. Co., 97 Ala. 275, 284, 12 So. 276. The defendant argues that, granted that premise, then he cannot be charged with negligence because no man can tell when sleep will fall upon him. It is probably true that one cannot ordinarily fix with certainty upon the precise moment when he lapses into unconsciousness, but it is not true that ordinarily sleep comes unheralded. ... In an ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent. It lies within his own control to keep awake or cease from driving. And so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie...