Cluts v. Peterson, 9934

• Court: Supreme Court of South Dakota
• Citation: 113 N.W.2d 273,79 S.D. 462
• Docket Number: No. 9934,9934
• Parties: Gordon CLUTS, Plaintiff and Appellant, v. Alton PETERSON, Defendant and Respondent.
• Decision Date: 16 February 1962

Page 273

113 N.W.2d 273 79 S.D. 462 Gordon CLUTS, Plaintiff and Appellant,
v.
Alton PETERSON, Defendant and Respondent. No. 9934. Supreme Court of South Dakota. Feb. 16, 1962.
Rehearing Denied March 22, 1962.

[79 S.D. 464] Loucks, Oviatt & Bradshaw, Watertown, for plaintiff and appellant.

Austin, Hinderaker & Hackett, Watertown, for defendant and respondent.

RENTTO, Presiding Judge.

This litigation involves our guest statute. The meaning of the law is pretty well established

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by our decisions but difficulty is often encountered in its application. That is the problem in this case.

Plaintiff was injured while riding in defendant's 195l Ford Thunderbird Coupe, driven by the defendant. The accident happened on October 28, 1958, about 8 or 9 miles west of Watertown, South Dakota, on Highway #212 at about 11 p. m. His complaint alleges that on the occasion in question his status was that of a passenger and that the conduct of defendant, which caused his injuries, was willful and wanton misconduct. At the close of all the testimony the trial judge directed a verdict for defendant on the grounds that plaintiff was the guest of defendant without compensation and that defendant's conduct was not willful and wanton. From the judgment entered thereon plaintiff appeals. His principal complaint is that it was for the jury to say whether he was a guest or a passenger, and whether defendant's misconduct was willful and wanton.

Plaintiff was then 40 years of age and resided at Vienna, South Dakota, which is about 5 miles south of [79 S.D. 465] Naples, South Dakota, where the defendant lived. Both of these towns are about 25 miles in a southwesterly direction from Watertown, which is the trading center of that area. His main occupation was operating a truck for hire, hauling stock and grain and he did a little farming on the side. The defendant was also in the trucking business and operated a farm located between Naples and Vienna. On occasions they spent time together socially and had worked together in the trucking business. They had known each other for about 20 years and were good friends. Defendant said they stayed at plaintiff's house the night before the accident. Plaintiff admitted that they slept there once but did not remember whether it was the night before the accident or not.

Defendant had a truck loaded with shelled corn on his farm which he was interested in selling. Apparently he and plaintiff discussed the matter. When asked on direct examination if he had a conversation with defendant in Vienna on the morning of the accident plaintiff answered:

'Yes, we had a discussion about the load of corn he had on his truck, and I had corn of my own that I was interested in, so he asked me if I would go along with him.'

On his cross-examination concerning this conversation the following appears:

'Q. What was the gist of that conversation about the corn? A. Well, he was saying that he had this load of corn, that he had hired a sheller to shell it the day or two before that and was wondering where there was a good market for it.

'Q. In other words, he asked you where there was a good market? A. Yes.

'Q. And what did you tell him? A. Well, I said the best way to find out is to go out and inquire, so he asked me to go with him. So we started out.'

[79 S.D. 466] When asked on direct examination the purpose of the trip they started out to make that morning he answered: 'Primarily to sell this load of corn and find a higher priced market for it.'

According to plaintiff he and defendant were together in the bar at Vienna about 8 o'clock on the morning of the day of the accident where each had a bottle of beer and talked about defendant's corn. They left Vienna between 8:30 and 9 a. m. with Naples as their destination. Their route went by defendant's farm so they stopped there and saw the truck load of corn but took no samples of it. While at the farm plaintiff phoned his brother-in-law at Egan, South Dakota, who manages the elevator there and asked him the price of corn. It was not sufficiently attractive so they drove to Naples arriving there about 9:30 a. m. They went to the elevator and asked the price of corn which was quoted to them, remaining in Naples about 15 minutes.

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From there they drove directly to Henry where they stopped at the elevator and talked to the man in charge about the price of corn but received no quotation. After that they visited a bar where each had a bottle of beer.

Then they drove to Watertown arriving at about 1 o'clock and stopped at the Livestock Sales barn for about 30 minutes. They observed the market and looked around for someone that would possibly be interested in corn but didn't talk to anyone about it. From there they went to the Watertown mill for only a few minutes where they inquired as to the price of corn but were quoted no price. Between 2:30 and 3 o'clock they went to the KP bar where they stayed for an hour or two and had something to drink. From that establishment they went to the Sears bar. How long they were there and what they did is unclear in his testimony. Eventually, plaintiff left this bar and went to defendant's car. Of events after that he faintly remembers only trying to pick himself up after the accident which happened when they were returning to Vienna. In addition to visiting the bars in Watertown enumerated by plaintiff [79 S.D. 467] he said that they possibly stopped at another--the White Horse bar.

In the main defendant's version of their activities on the day of the accident corroborates plaintiff's testimony. Concerning the conversation they had before starting on their trip defendant said: '* * * we got to talking about corn prices so I kind of asked Gordon if he wanted to go along to Watertown. We didn't intend to farm that day at all because we were just riding around--'. This is not denied, nor is his statement that they stopped at his farm because 'there was nobody home there that night, and I just wanted to see if it was still there.' In the 20 years that defendant had been farming he had never required assistance for finding a market for his corn.

The prices which they were quoted that day was for corn of a minimum moisture content. It is a matter of common knowledge that if the moisture content is greater than the minimum the price for it is accordingly reduced. This is determined by a rather simple test which utilizes a sample of the corn involved. Apparently all elevators buying corn are equipped to make this test. As stated above the parties did not have a sample of defendant's corn with them for this purpose.

After plaintiff had contacted a law firm to represent him in the...