Brewer v. Mattern, 10707

• Citation: 85 S.D. 356,182 N.W.2d 327
• Decision Date: 29 December 1970
• Docket Number: No. 10707,10707
• Parties: David L. BREWER, by his Guardian Ad Litem, Lyle H. Brewer, Plaintiff and Respondent, v. Richard L. MATTERN, by his Guardian Ad Litem, Leo J. Mattern, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 327

182 N.W.2d 327

85 S.D. 356

David L. BREWER, by his Guardian Ad Litem, Lyle H. Brewer, Plaintiff and Respondent, v. Richard L. MATTERN, by his Guardian Ad Litem, Leo J.

Mattern, Defendant and Appellant.

No. 10707.

Supreme Court of South Dakota.

Dec. 29, 1970.

Rehearing Denied Feb. 1, 1971.

Miller, Kaye & Hanson, and Shandorf & Bleeker, Mitchell, for plaintiff and respondent.

Morgan & Fuller, Mitchell, Brady, Kabeiseman & Light, Yankton, for defendant and appellant.

JONES, Circuit Judge.

This is another guest statute case. From a verdict and judgment for the plaintiff, and order denying defendant's motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, the defendant appeals.

Defendant's first assignment of error is based on his contention that the evidence is insufficient to establish wilful and wanton misconduct on the part of the defendant.

The one-car accident occurred shortly before midnight on April 1, 1967 on a graveled township road between Mitchell and Loomis in Davison County that was being used as a detour. In the car were defendant, the driver, who was 19, the plaintiff and a friend, James Roberts, both age 18. All three were students at the University of South Dakota and members of the same social fraternity, and were at their respective homes for a spring vacation.

The defendant and James Roberts, both from Yankton, had lfet Yankton about 7:30 p.m. to attend a dance in Tyndall. Before leaving Yankton they purchased a six-pack of beer. After spending some time in Tyndall and buying another six-pack of beer, they decided to go to Mitchell to visit the plaintiff, who was at his parents' home in Loomis, about nine miles northwest of Mitchell. They arrived in Mitchell about 11 p.m., and called the plaintiff at his home. By this time defendant and Roberts had each consumed four cans of beer. They drove north from Mitchell and then west to Loomis on an oiled highway.

The night was dark, misty, rainy and cold. The plaintiff and his father had returned home about 11 p.m. from sweeping ice off the top of the wings of their Piper Cub airplane. The defendant had been using his windshield wipers most of the evening. The weather just after the accident was described as raining, snowing and sleeting.

The defendant and Roberts picked up the plaintiff at his home. Leaving Loomis the defendant was driving, Roberts was sitting in the middle and the plaintiff was sitting on the right side of the front seat. They decided to take a different, shorter route back to Mitchell. They proceeded south from Loomis on an oiled road for approximately a mile and one-half until they came to a barricade across the road and a debtour sign directing them east on a graveled road. A mile east of the first barricade was another detour sign directing traffic south. This road was also graveled and it was described as 'sloshy'. The bridge which was the scene of the accident was about three-quarters of a mile south of this intersection. After they turned south, the defendant was driving between 50 and 60 miles per hour.

At this point, the plaintiff testified as follows:

'Q What, if anything, did you say to Richard then and there?

A We turned and started south; just as he turned south, I said, 'There is a hill coming up and a series of curves, and a bridge that sits at a real bad angle, and that we would have to slow down.'

Q What did he say?

A He didn't respond at all. He didn't say anything.

Q Did he slow up his car?

A No.'

Proceeding south they came to a curve sign indicating a right turn. A red flag was attached to the sign. This was about 1,200 feet from the bridge. The plaintiff testified to another warning being given the defendant at about this point, as follows:

'A Well, as we proceeded down the road, heading south, perhaps a quarter or half mile away from the bridge, I said, 'Rich, you will have to slow down."

Since the defendant did not slow down, this warning was not heeded.

About 800 feet from the bridge was a 'Narrow Bridge' sign with a red flag attached to it. About 600 feet from the bridge was a sign stating a speed limit of 25 miles per hour, again with a red flag attached. This was at approximately the beginning of the right curve. About 150 feet from the bridge, the road turned abruptly to the left. This turn was not marked. As the defendant went into this turn, at a speed which the plaintiff estimated at 50 to 60 miles per hour, he lost control of the car and slid sideways about 150 feet into the northwest corner of the bridge.

An examination of the photographs of the accident scene indicates that the locale of the accident could be generally described as an 'S' curve with a bridge sitting in the middle of the 'S'.

The South Dakota guest statute states:

'SDCL 32--34--1. 'Guest statute--Willful and wanton misconduct required.--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 first case construing this statute, Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, laid down the general principles of law which have been consistently applied to all guest statute cases since 1936:

'That to create liability under the statute there must be (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) omission to use such care and diligence to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another.'

See also Coon v. Williams, 4 Mich.App. 325, 144 N.W.2d 821.

The meaning of this law is well established by our decisions but difficulty is often encountered in its application. Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273. Proof of wilful and wanton misconduct depends upon the facts in each particular case. Elfert v. Witt, 73 S.D. 4, 38 N.W.2d 445. As stated in Allen v. McLain, 74 S.D. 646, 58 N.W.2d 232,

'Of course no two fact situations are identical, and the cases are not too helpful except for giving an over-all picture of the application of the rule.'

See also Tien v. Barkel, 351 Mich. 276, 88 N.W.2d 552; Anderson v. Lippes, 18 Mich.App. 281, 170 N.W.2d 908.

Counsel for the defendant strenuously argues that the defendant in this case operated his car this evening without incident or accident until he skidded on the last curve, that he merely failed to negotiate an unmarked curve on an unfamiliar road, and that while he might be negligent, he lacked the affirmatively reckless state of mind referred to in Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153. After the accident, the defendant stated that he had driven a gas truck for his father on gravel roads and that he could take the curves on those roads faster than most people could.

In determining whether the evidence in a guest statute case is sufficient to sustain the verdict of the jury on the issue of wilful and wanton misconduct, the question for this court always is, is the evidence such that a jury might find that to the ordinary mind it must have been apparent that the described conduct would in all probability (as distinguished from possibility) produce the precise result which it did produce and would bring harm to the plaintiff. Allen v. McLain, supra.

In determining whether the defendant's conduct in a guest statute case constitutes wilful and wanton misconduct, great stress has been placed on the actual frame of mind of the defendant. 8 Am.Jur.2d Automobiles and Highway Traffic, § 488, p. 56. This stress is proper in those cases in which the evidence establishes clearly the reckless state of mind of a defendant, as in Stoll v. Wagaman, 73 S.D. 186, 40 N.W.2d 393. But this stress can be misleading if it results in considering only the actual state of mind of the specific driver to the exclusion of a consideration of his wilful conduct under the attending circumstances. Minick v. Englert, S.D., 167 N.W.2d 551. The driver who actually thinks that he can safely give his passengers a 'thrill ride', or who actually thinks that he can engage in 'drag racing' without endangering his guests, or who actually thinks that because of his driving experiences he can safely disregard warnings and warning signs in obviously hazardous circumstances, cannot escape liability under the guest statute by establishing that in so doing he did not think that this conduct would probably (as distinguished from possibly) produce the precise result that it did produce and would bring harm to his guests.

In determining the defendant's intent or state of mind in guest statute cases, this court has adhered to the so-called 'external standard' since the Melby case was decided in 1936. Using this external standard, the defendant's mental attitude is established not by what he said nor even by what he may actually have thought, but rather by the attitude that an ordinarily prudent person would have had under all the attending circumstances. Espeland v. Green, 74 S.D. 484, 54 N.W.2d 465; Stevens v. Stevens, 355 Mich. 363, 94 N.W.2d 858.

The defendant strenuously argues that the fact that he was unfamiliar with the road negates any inference that he was guilty of wilful and wanton misconduct. However, we are unable to distinguish any difference between knowing of danger by reason of personal observations and knowing of danger by reason of prior warnings. In this connection, the warnings become important, not because they were disregarded, but because they gave ...