Boyd v. Alguire

• Citation: 82 S.D. 684,153 N.W.2d 192
• Decision Date: 06 October 1967
• Docket Number: No. 10405,10405
• Parties: Bruce W. BOYD, Plaintiff and Respondent, v. Floyd V. ALGUIRE, Administrator of the Estate of Roger L. Alguire, Deceased, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 192

153 N.W.2d 192

82 S.D. 684

Bruce W. BOYD, Plaintiff and Respondent, v. Floyd V. ALGUIRE, Administrator of the Estate of Roger L Alguire, Deceased, Defendant and Appellant.

No. 10405.

Supreme Court of South Dakota.

Oct. 6, 1967.

Woods, Fuller, Shultz & Smith, Timothy J. Nimick and Merle Johnson, Sioux Falls, for defendant and appellant.

Davenport, Evans, Hurwitz & Smith, Carleton R. Hoy, Sioux Falls, for plaintiff and respondent.

ROBERTS, Judge.

This is an action to recover damages for personal injuries sustained by plaintiff while in an automobile owned and driven by Rober L. Alguire. The driver, then of the age of eighteen, was killed in the accident. The action was commenced against the administrator of his estate. From judgment on a verdict for the plaintiff, defendant has appealed.

Plaintiff alleges that on February 8, 1963, he was riding 'under contractual relationship, not as a guest, in a motor vehicle operated by Roger L. Alguire' and that the driver operated his automobile at a speed greater than was reasonable and prudent under the circumstances and failing to keep his automobile under control collided with a portion of an overpass spanning the highway on which they were traveling. There is no allegation that the negligence of decedent was willful or wanton. Defendant's answer denies that there was a contractual relationship and affirmatively alleges that plaintiff was being transported by defendant's decedent as his guest without compensation, but if there existed a contract for compensation defendant administrator disaffirms the same and tenders and offers to restore and pay the plaintiff any consideration received.

Plaintiff and decedent were students at the University of South Dakota and had been acquaintances for several years. At the time of the accident decedent, enroute from Vermillion to Sioux Falls, was accompanied by plaintiff and three other students. Plaintiff contacted defendant's decedent about riding with him. The court before admitting evidence of statements of the deceased made the preliminary finding required by the provisions of SDC 1960 Supp. 36.0104 ¹ after hearing evidence as to the alleged statements and the making thereof. Plaintiff then testified before the jury as follows:

'Q Now I assume there that you had some conversation with Mr. Alguire at that time about a ride to Sioux Falls? A Yes.

'Q Now first of all, I want you to state for the jury what you said at that time? A I asked Roger if I could get a ride home to Sioux Falls this afternoon with him.

'Q All right now would you state for the jury what he said in response to that question. * * * A At that time he said, yes, I could have the ride if I shared the gas expense at the time of fifty cents.

'Q Did you have some additional conversation then? A That I would meet him in the parking lot at three thirty that afternoon and we would leave from there.

'Q Then after you left from the parking lot, you drove to the Texaco station and you have told us about that? A Yes sir.'

Plaintiff had testified that while at the gas station each of the riders including himself paid fifty cents to defendant's decedent for the purchase of gasoline.

The party of five left Vermillion about four o'clock in the afternoon traveling east on Highway 50 to the junction of Interstate 29 and then proceeded north on the latter highway. Plaintiff was riding in the seat beside the driver and Darrel Seaman to the right of plaintiff. The other two occupied the rear seat. They proceeded without incident until they reached the Harrisburg overpass and exit. About a mile north of this point is another overpass.

There was conflict in the evidence as to the weather and highway conditions and the speed of the car at the time of the accident.

Plaintiff testified that immediately before the accident decedent was traveling between 50 and 60 miles per hour; that there was 'some form of precipitation'; that immediately after traveling under the Harrisburg overpass the car went into a slight skid and then came back into the lane of travel; and that thereafter having proceeded two or three hundred yards and without the slackening of speed the car went into a second skid and out of control and the left side of the car struck a concrete support of the overpass. A highway patrolman arriving shortly after the collision testified that highways in the area were slippery and that decedent's car left skid marks measuring 71 paces, a pace being slightly more than two feet. As to defendant's version of the accident, there was only the testimony of Darrel Seaman. This witness testified that he did not observe any snow or ice on the highway and describing the movement of the car at the time it struck the concrete support stated there had been no previous skidding.

Defendant contends (1) that the mere sharing of expenses did not make plaintiff a passenger rather than a guest; (2) that if there was an agreement for transportation with compensation the agreement was timely disaffirmed; (3) that sudden skidding of the automobile in and of itself did not constitute negligence; and (4) that the court committed errors in the admission of evidence and in its instructions to the jury.

Defendant contends that SDC 44.0362 known as the guest statute is here applicable. It reads:

'No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought * * *.'

The question whether a person riding in another's automobile is a guest within the meaning of this statute depends upon the facts and circumstances involved in each case. Plaintiff contends that the evidence shows that he was being transported by defendant's decedent in consideration of a cash payment made a pursuant to an agreement. Defendant insists that the cash payment or contribution was not a benefit accruing to the operator of the car sufficient to remove him from the category of a guest. The trial court concluded that the question of relationship was one of fact for the jury.

When evidence is undisputed or such that minds of men could not reasonably arrive at but one conclusion, the question is one for decision by the court as a matter of law; otherwise, it is a question for the jury to decide as other issuable facts in the case. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153; Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273.

The meaning of the word 'guest' as used in the statute, then Ch. 147, Laws 1933, was first considered by this court in Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519, where we said: 'While it might be that under this statute actual payment in money or other tangible thing is not necessary to exclude one from its terms and render one not a guest, nevertheless, we believe that the statute contemplates some benefit accruing from the transportation to the owner or operator of the motor vehicle in order to render a passenger in a motor vehicle not a guest. Such benefits as are compatible with hospitality, companionship or good fellowship accruing to the owner or operator are not sufficient to take the passenger out of the guest classification. Perhaps no precise rule can be laid down at this time to govern every situation, but we think it clear that under this state of facts where the transportation of this plaintiff was a mere gratuity, and where the benefit derived from the transportation accrued solely to the plaintiff, plaintiff must be classified as a guest under our statute.'

In Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169, it was held that a member of a band who had volunteered his service for a booster trip to advertise a community enterprise and was being transported when injured in a motor vehicle driven by defendant, a businessman who was benefited indirectly by the advertising trip, was not a guest; that the benefit accruing to or conferred upon the driver of the vehicle was sufficient to take the person riding with him out of the guest classification.

The statute in question must be interpreted and applied in accordance with the intention of the legislature. The statute should not be extended by construction beyond its objectives nor be so restricted as to defeat its purposes. The phrase 'guest without compensation for such transportation' implies that the occupant so referred to is the recipient of the hospitality of the owner or operator as distinguished from a passenger who has given compensation for the transportation. A vague, incidental or speculative benefit is not sufficient to take an occupant out of the guest class. In Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, it is said that the benefit must be 'sufficiently real, tangible and substantial to serve as the inducing cause of the transportation, and to...