Berlin v. Berens

• Decision Date: 31 December 1956
• Docket Number: No. 9588,9588
• Parties: Frieda BERLIN, Plaintiff and Appellant, v. Peter BERENS and Clyde Turner, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 79

80 N.W.2d 79

76 S.D. 429

Frieda BERLIN, Plaintiff and Appellant, v. Peter BERENS and Clyde Turner, Defendants and Respondents.

No. 9588.

Supreme Court of South Dakota.

Dec. 31, 1956.

Rehearing Denied Feb. 8, 1957.

T. R. Johnson, Sioux Falls, for plaintiff and appellant.

Morgan & Fuller, Mitchell, for defendants and respondents.

RENTTO, Judge.

This is another case under our guest statute--SDC 44.0362. The car in which plaintiff was riding as a guest was owned by the defendant Clyde Turner. It was being driven by the defendant Peter Berens when involved in an accident which caused serious personal injuries to the plaintiff. This action seeks recovery for those injuries. At the close of plaintiff's case the court, on motion of the defendants, dismissed the complaint as to the defendant Turner and directed the jury to return a verdict in favor of the defendant Berens. The trial judge was of the view that the plaintiff as a matter of law failed to show that Berens was guilty of willful and wanton misconduct. After denial of plaintiff's motion for a new trial judgment was entered on the verdict. Plaintiff appeals from the judgment and from the order denying a new trial.

Plaintiff does not urge that the court erred in dismissing the complaint as to Turner, the owner of the car. Her main claim on this appeal is that the court erred in directing a verdict for Berens, the driver of the car. She contends that whether Berens was guilty of willful and wanton misconduct is a question of fact which should have been submitted to the jury.

Plaintiff and the defendant Berens and Mrs. Berens are residents of Woonsocket. The defendant, Clyde Turner and his companion Homer Dick, residents of Illinois, were pheasant hunting in the Woonsocket vicinity during the 1952 season. On the night of October 20th these five persons went from Woonsocket to a dance at Ruskin Park. They rode in Turner's Pontiac with Turner doing the driving. From the dance they went to the Brig--an eating establishment north of Mitchell. Defendant Berens drove the car. About 2:30 on the morning of October 21st they left the Brig and started for Woonsocket with defendant Berens again driving. Dick and Mrs. Berens rode in the back seat. Plaintiff was seated to the right in the front seat with Turner seated between her and the driver. They proceeded north on highway No. 37 until involved in a collision with a petroleum transport truck at about 3:00 a. m., just as they passed from Davison County into Sanborn County. The transport was proceeding toward Mitchell.

To the north line of Davison County Highway No. 37 has a concrete surface. In Sanborn County it has a black top surface. In going north at the point where the concrete ends the highway curves to the west and then runs northwesterly for a short distance where it curves to the north. It is described in the testimony as a 'kind of an S curve'. The highway was dry and visibility was normal. Earle Dwelle, the driver of the transport, testified that he was going south with his empty transport on his side of the highway at a speed of 40 to 45 miles an hour. As he came into the westerly curve from the north he saw the lights of a car coming from the south. It was about a quarter of a mile a away at the place where the concrete highway ends and the oil begins. He continued around the curve on his side and all at once noticed that the car from the south was in the wrong lane of travel about 150 to 200 feet away, traveling toward him at a speed 'approaching approximately 60 miles an hour'. Its lights were on low beam. He hesitated a moment to see what the car was going to do. When he saw that the car wasn't going to get onto its side of the read he gave the steering wheel of his truck a quick turn to his left. He did not apply his brakes.

The right front of the car struck the right front wheel of the tandem wheels located near the rear of the trailer. The impact occurred in the lane of travel southwest of the center line. The tractor and much of the trailer were then in the lane of travel northeast of the center line. The trailer became separated from the tractor and came to a stop in the northeast ditch about 75 feet from the point of impact. The tractor continued down the road to the north shoulder near the east curve. The Pontiac car came to a stop on the southwest shoulder of the road facing east on the westerly curve. Apparently none of the vehicles overturned. The Pontiac made a set of parallel skid marks on the highway 63 feet long ending at the point of impact. These were in the right hand lane of traffic proceeding south--that is, in the lane to the south of the center line.

Of the five persons in the Pontiac only the plaintiff and the two defendants were called to testify. So far as here material the testimony of defendant Turner was to the effect that after leaving the Brig they were going at a speed of 45 to 50 miles per hour. He fell asleep when they were about four or five miles out and continued to sleep until the collision occurred. Plaintiff testified that after leaving the Brig she talked with some of the other passengers for a short while and then fell asleep. During the time that she was awake the defendant Berens was driving properly and talked sensibly. She continued to sleep until the accident took place.

Defendant Berens gave this version of the accident. He first saw the transport being driven by Dwelle as it was coming out of the north curve about 200 to 300 feet away. He put his lights on low beam. The transport was then riding the white line in the center of the highway with the left front wheels of the tractor about a foot over the line. The trailer was cutting diagonally across the road. He crossed over to the left lane in trying to miss the truck. Before this he was traveling on his own side of the road at a speed of from 40 to 50 miles an hour. On cross-examination he admitted that he was arrested and plead guilty to reckless driving and speeding. The allegations of this criminal charge were not offered in evidence.

Plaintiff introduced Exhibit 12, being a copy of a written statement made by Berens about four months after the occurrence concerning the facts surrounding the happening of the accident. This statement differs in some of its details from the testimony he gave as a witness. It also contains an additional statement that three days after the accident he told the motor patrolman that he had dozed off just before the accident. In Exhibit 12 he repudiates this fact. The exhibit was offered in evidence 'for the purpose of impeachment'. In admitting the exhibit in evidence the court did not indicate that it was admitted for any purpose other than that for which it was offered.

The evidence also shows that about seven miles north of Mitchell the Pontiac overtook a petroleum transport that was going north. The driver of this transport testified that the Pontiac in overtaking him traveled at a speed of 50 to 60 miles an hour. That without giving any signal it overtook him and crossed over on the highway to the east side so far that both right wheels of the Pontiac were off the concrete. In getting back on to the concrete it swerved a couple of times and then straightened out and proceeded north on the pavement. He did not see the Pontiac again until he arrived at the scene of the accident about two miles further north. Another car overtook him shortly after the Pontiac had gone by.

Under the circumstances we are required to review this evidence in the light most favorable to the plaintiff. However, since Exhibit 12 was offered and admitted only for the purpose of impeachment its contents may not be considered as substantive evidence even though it might have been admissible in that aspect also. Evidence that is offered for a limited purpose may not be considered for any other purpose. William Deering & Co. v. Mortell, 21 S.D. 159, 110 N.W. 86, 16 L.R.A.,N.S., 352. This limitation applies to evidence that is offered and admitted solely for the purpose of impeachment. 88 C.J.S., Trial, § 89.

Our guest statute relieves the driver or owner of a motor vehicle from liability to a guest for injury, death or loss arising from ordinary negligence and makes him liable only for damages occasioned by his willful and wanton misconduct. The phrase 'willful and wanton misconduct' as used in this statute was first before this court for construction in Melby v. Anderson, 64 S.D. 249, 266 N.W. 135. It was most recently before us in Chernotik v....