Buffat v. Schnuckle

• Decision Date: 15 October 1957
• Docket Number: No. 8572,8572
• Parties: Jack BUFFAT, Plaintiff-Appellant, v. Harold D. SCHNUCKLE, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 887

316 P.2d 887

79 Idaho 314

Jack BUFFAT, Plaintiff-Appellant, v. Harold D. SCHNUCKLE, Defendant-Respondent.

No. 8572.

Supreme Court of Idaho.

Oct. 15, 1957.

Anderson & Anderson, Pocatello, Gilbert St. Clair, Idaho Falls, for appellant.

Merrill & Merrill, Pocatello, for respondent.

SMITH, Justice.

Appellant brought this action to recover damages on account of personal injuries received in an automobile accident which occurred while riding in an automobile driven by respondent.

The pleadings and appellant's evidence present the question whether at the time of the accident appellant was a passenger or whether he was a guest of respondent.

Appellant in his amended complaint alleges that at the time of the accident both he and respondent in effect were fellow servants acting within the scope of their common employment for a common master, and alleges respondent's ordinary negligence as the proximate cause of the accident. Respondent, on the other hand, denies those allegations, and affirmatively alleges that the host-guest relationship existed between him and appellant at said time.

Respondent moved for a judgment of non-suit at the conclusion of appellant's evidence. The trial court granted the motion on the ground of insufficiency of the evidence to entitle appellant to recover (I.C. § 10-705), in that the evidence established the host-guest relationship as existing between respondent and appellant when the accident occurred. Appellant appealed from the ensuing judgment of non-suit.

Appellant by his assignments asserts error committed by the trial court in ruling that the host-guest relationship existed between respondent and appellant, and in failing to rule consonant with appellant's pleading and proof that respondent and appellant were fellow-servants at the time of the accident.

On a motion for non-suit after plaintiff has rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. I.C. § 10-705, subd. 5; Later v. Haywood, 12 Idaho 78, 85 P. 494; Bank of Commerce, Ltd. v. Baldwin, 12 Idaho 202, 85 P. 497; Donovan v. Boise City, 31 Idaho 324, 171 P. 670; Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044; Sweetland v. Oakley State Bank, 40 Idaho 726, 236 P. 538; Southeast Securities Co. v. Christensen, 66 Idaho 233, 158 P.2d 315; Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P.2d 498. The rule is stated in Koser v. Hornback, 75 Idaho 24, 27, 265 P.2d 988, 989, 44 A.L.R.2d 1015, as follows:

'Both the trial court and this court, in reviewing plaintiff's evidence on motion for non-suit, must consider it in the light most favorable to the plaintiff. If there is substantial and competent evidence which, uncontradicted, would justify reasonable men in concluding that plaintiff was entitled to prevail, then the non-suit should be denied. Or, if the evidence is such that reasonable men might draw different conclusions therefrom, as to the controlling issues in the case, then those issues should be submitted to the jury. Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P.2d 498; McKee v. Chase, 73 Idaho 491, 253 P.2d 787, and cases there cited.

* * *

* * *

'The court may not weigh the evidence, or resolve the conflicts therein, or determine what conclusions should be drawn therefrom. That is the function of the jury, and the essence of a jury trial.'

A fair summary of plaintiff's case as shown by the evidence, viewed in the light required by the foregoing rules, is hereinafter set forth.

Appellant and respondent, fellow officers, captain and lieutenant respectively, of the 381st Infantry Regiment, U. S. Army Reserves were on active duty during July, 1955, at a summer encampment having its headquarters at Yakima Firing Center, Yakima, Washington. The regiment consisted of three battalions,--two from the State of Montana and one from the State of Idaho.

During the encampment appellant's battalion commander requested appellant to organize and supervise a regimental party, sanctioned by the regiment's commanding officer, to be given for the benefit of enlisted personnel. Appellant accepted the assignment and secured the use of a park near Yakima, some seven miles distant from regimental headquarters, where the regimental party was held. The expenses of the party were defrayed from army funds, set aside for that purpose, and from donations made by the officers.

Appellant in organizing the details of the party issued a special bulletin, under the sanction of both the regiment's commanding officer and his battalion commanding officer. The bulletin set forth the time and place of the party, the type of uniform required to be worn, places to assemble for army transportation furnished, athletic contests which would be engaged in between units representing the battalions, and that entertainment, food and refreshments would be furnished. The bulletin warned against abuse of the facilities of the park. All officers and enlisted men were requested and expected to attend.

The army transportation furnished was required to be used by those attending the regimental party, except by those who, by special permission of battalion commanding officers, were allowed to use their own automobiles at their own expense. Respondent obtained permission of his battalion commanding officer to, and he did, use his own motor vehicle in lieu of the furnished army transportation. Appellant used army transportation from regimental headquarters to the park.

The entire regiment, led by the regiment's commanding officer, proceeded in convoy from regimental headquarters to the park to attend the regimental party and in the same manner returned to regimental headquarters, excepting those, including respondent, who had been granted special permission to use their own motor vehicles for such purpose.

Appellant pursuant to his assignment attended to all the details of the regimental party including obtaining certain army entertainers. At the conclusion of the party he relinquished his army vehicle to the entertainers for their transportation from the park. Appellant, while he could have left the park at certain times by the use of other army transportation, stayed at the park in order to supervise the last details of placing the park premises in order, making payment of certain expenses incurred, and in seeing that all attending the regimental party had left the park. Meanwhile appellant made the request of respondent to ride back to headquarters in respondent's automobile, to which request respondent acceded.

At the time of the accident appellant, respondent and two other officers, in respondent's automobile, were on their way back from the park to the camp headquarters of the regiment. On the way back appellant had intended to stop in Yakima for a personal errand. Appellant did not pay for the ride in respondent's automobile. Respondent was proceeding around a curve when his automobile ran onto the shoulder of the highway and struck a post at the site of a culvert, not visible because of grass growing over it, and struck the culvert which caused the automobile to upset. Appellant was thrown from the vehicle and thereby sustained personal injuries. The army, upon investigation of the matter, found that appellant was injured in line of duty.

The regiment's commanding officer testified that while the officers were not required to attend the regimental party and would not have been punished for not attending, nevertheless they were requested to attend; also, that while appellant was not required to accept the assignment of 'putting on' the regimental party, he did so, and that thereupon his presence was required, and he was on duty. The testimony of such commanding officer appears as follows:

'A. * * * I did so state that he [appellant] was requested or asked would be the better word whether he would so accept the putting on of this party. He was allowed in all cases such as this the opportunity if he did not so desire, to refuse.

* * *

* * *

'A. Yes, he was in charge of the regimental party.

'Q. Was he required to be there?

'A. You speak of being in charge, I would say yes; he would be required to be there; however, his position was to make all the arrangements and to be sure that it went smoothly * * *.'

The regiment's commanding officer then testified concerning the purpose of the regimental party, as follows:

'Q. What is the purpose that you hoped to achieve by having such a get-together, if you know?

'A. Friendly relationship between the members of the units for the simple reason that we are separated so widely over such a wide area and this is the only time and opportunity we have to get together for two weeks of active, also the purpose then would be to create a better understanding and feeling and what not.

'Q. Esprit de corps and morale and such as that?

'A. That is right.'

The import of the 'request' made by the officers to attend the regimental party was brought out by uncontroverted testimony, as follows:

'The Court: Just a moment Mr. Buffat--There is one question--I notice, Mr. Buffat, you used the word, that the officers were requested to be there, does the word 'requested' have any particular significance?

'A. Yes sir, a request is a command in the Army, sir.

* * *

* * *

'A. To an officer, yes sir.'

In that connection the regiment's commanding officer testified concerning his request that the officers attend, as follows:

'Q. Did you issue any request at any time that the officers that could, should attend this regimental party?

'A. I believe that that would be yes. * * *.'

The regiment's commanding officer testified concerning the source of the funds used for the regimental party, and for whose benefit the party was put on, as follows:

'Q. Where did the funds come from to put on this party? A. the funds came from two sources, donations from the officers and we received a PX dividend at Camp...