Egan v. Sheffer

• Decision Date: 03 October 1972
• Docket Number: No. 10994,10994
• Parties: Patrick J. EGAN, Plaintiff and Respondent, v. Daniel Ray SHEFFER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 174

201 N.W.2d 174

86 S.D. 684

Patrick J. EGAN, Plaintiff and Respondent, v. Daniel Ray SHEFFER, Defendant and Appellant.

No. 10994.

Supreme Court of South Dakota.

Oct. 3, 1972.

Willy, Pruitt, Matthews & Jorgensen, Acie W. Matthews, Sioux Falls, for defendant and appellant.

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

WOLLMAN, Judge.

This is an appeal from a verdict in favor of plaintiff for damages for personal injuries suffered in a one-car accident while plaintiff was riding in defendant's automobile as a guest.

Plaintiff and defendant became acquainted sometime in 1964 when they started attending Washington High School in Sioux Falls, South Dakota. They remained good friends during their high school days, during which time they visited each other's homes and drove each other's automobiles. After graduating from high school in the spring of 1967, plaintiff and defendant enrolled in Dunwoody Industrial Institute, Minneapolis, Minnesota, in the fall of that year where they shared an apartment with a friend from Sioux Falls, Timothy Boe, who was also attending the Institute. The three boys returned to Dunwoody Institute in the fall of 1968 after the summer vacation.

On November 26, 1968, plaintiff, defendant and Timothy Boe returned to Sioux Falls from Minneapolis for the Thanksgiving holiday with another young man from Sioux Falls who was also attending the Institute. During the course of the trip back to Sioux Falls, plaintiff and defendant made arrangements to meet that evening. In accordance with such arrangements defendant drove to plaintiff's home at approximately 8 p.m. on November 26th. From there the two drove to the Union Jack, a 3.2 beer tavern in Sioux Falls, where they drank some 3.2 beer. After staying at the Union Jack for a short time, plaintiff and defendant drove to Charlie's Pizza House on south Minnesota Avenue in Sioux Falls and remained there until midnight, at which time the premises were closed for the evening. They were joined during the course of the evening by Timothy Boe and while the three boys were at Charlie's Pizza House they consumed 3.2 beer until closing time, with each boy drinking about an equal amount of beer. Defendant met his former girl friend at Charlie's Pizza House and had an argument with her sometime during the evening, which caused defendant to become quite upset.

After Charlie's Pizza House closed for the evening, plaintiff, defendant and Timothy Boe got into defendant's 1956 Chevrolet automobile. Timothy Boe sat in the back seat and plaintiff sat in the front passenger seat. In place of a stock engine, the car was powered by a 327 (presumably 327 cubic inch) engine which defendant, who was studying auto mechanics at Dunwoody Institute, had modified by installing some high performance parts which enabled the car to accelerate more rapidly and to go faster. The car had a manually operated transmission with the hand gearshift on the floor. The speedometer did not work.

After entering the car plaintiff and defendant had some conversation about 'burning out the cobs.' Plaintiff testified that defendant jumped into the car, started the engine '* * * was just pumping the foot feed, just pumping the gas, and I asked him, more or less, like, well, it was just a thing between us, you know--'What are you going to do, burn the cobs out?' And he shoved it in first gear, and rammed through all three gears * * * '. On cross-examination, plaintiff testified that after defendant had jumped into the car and revved up the engine plaintiff asked him, 'Did you burn out the cobs?' Plaintiff conceded that 'to burn out the cobs' means to spin the tires and to drive at a high rate of speed and that he knew that defendant would drive at a high rate of speed. ¹ Defendant testified that after they got into the car plaintiff said, 'Let's go burn the cobs out of it.' Defendant testified that this expression means to clean out the engine and go fast.

Immediately after this conversation defendant drove south on Minnesota Avenue past the Barrel Drive-In. Plaintiff testified that he saw defendant's former girl friend sitting with another boy in an automobile at the Barrel Drive-In and that he jested with defendant about the fact. Defendant testified that he did not see his former girl friend at the Barrel Drive-In and did not recall hearing any conversation from plaintiff about the former girl friend.

As defendant drove away from where he was parked near Charlie's Pizza House he accelerated rapidly and did not slow down as he drove south on Minnesota Avenue. A witness testified that as he was preparing to turn on to south Minnesota Avenue from 41st Street on a green light defendant's automobile ran through the intersection against the red light at a speed of approximately 60 miles per hour between the witness' car and another car which had almost completed its turn on to Minnesota Avenue from 41st Street, narrowly missing both automobiles. Defendant lost control of the automobile on the curve on the top of the hill of south Minnesota with the result that the automobile skidded around, hit an embankment and turned over.

Timothy Boe testified that when the car reached the bottom of the hill on south Minnesota Avenue, 'I heard him (plaintiff) call Dan's name. I heard him yell, 'Sheffer,' and then he leaned over and then the ignition on the car went off and back on again and after that I blacked out because by then we were at the top of the hill and that's--(when the accident happened)'.

Defendant was familiar with south Minnesota Avenue, as was plaintiff. He testified that he had no idea whether he stopped at the stoplight at 33rd and Minnesota or whether the light there was red or green. He testified that he didn't stop for the stoplight at 41st and Minnesota, but stated that he could not remember what color that light was either. He testified that he couldn't remember whether plaintiff or Timothy Boe had ever advised him to stop or slow down. Defendant pleaded guilty to and paid a fine on a charge of reckless driving filed as a result of the driving that led to the accident.

Defendant argues that the accident was not caused by willful and wanton misconduct in that plaintiff and defendant were engaged in a joint venture, namely, driving at a high rate of speed, with the corresponding thrills relative thereto, and that there could be no willful and wanton misconduct on defendant's part because of the acquiescence on the part of plaintiff. We believe that the evidence does not indicate a joint enterprise or joint venture between plaintiff and defendant in the operation of defendant's automobile at the time of the accident. Zeigler v. Ryan, 65 S.D. 110, 271 N.W. 767; Fredrickson v. Kluever, 82 S.D. 579, 152 N.W.2d 346; Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605.

The evidence was sufficient to support the jury's finding that defendant was guilty of willful and wanton misconduct as defined in our earlier decisions. See, e.g., Melby v. Anderson, 64 S.D. 249, 266 N.W. 135; Wentzel v. Huebner, 78 S.D. 481, 104 N.W.2d 695. The evidence here was stronger than it was in Brewer v. Mattern, 85 S.D. 356, 182 N.W.2d 327, inasmuch as defendant drove a car, personally modified by him to accelerate rapidly and go at a high rate of speed, at least 60 miles per hour at night through at least one stoplight on a busy thoroughfare with which he was familiar, narrowly missing other automobiles that had the right-of-way over him.

Defendant contends that plaintiff assumed the risk of riding in defendant's automobile. The jury was properly instructed as to the defense of assumption or risk. There was competent evidence to support the jury's finding that plaintiff had not assumed the risk of injury. Viewing the evidence in the light most favorable to the plaintiff, we cannot say as a matter of law that plaintiff assumed the risk. Wentzel v. Huebner, 78 S.D. 481, 104 N.W.2d 695; Jennings v. Hodges, 80 S.D. 582, 129 N.W.2d 59.

Defendant contends that plaintiff brought his injury upon himself by his willful act or want of ordinary care and is barred from recovering by SDCL 32--34--2, which provides that:

'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, if he has willfully or by want of ordinary care brought the injury upon himself.'

Defendant argues that the court erred in refusing to instruct the jury on the issue of plaintiff's contributory negligence, citing Stoll v. Wagaman, 73 S.D. 186, 40 N.W.2d 393, where this court said that SDCL 32--34--2 (then SDC 44.0362) means that contributory negligence of the plaintiff is a defense in a host-guest case.

The court instructed the jury generally in the words of the guest statute, SDCL 32--34--1. Defendant's request that the court instruct the jury that plaintiff could not recover if he had willfully or by want of ordinary care brought the injury upon himself, SDCL 32--34--2, was refused. We conclude that the defendant did not suffer prejudice by reason of the court's refusal to give the requested instruction. The evidence did not warrant an instruction that defendant could not recover if he had willfully brought the injury upon himself. Defendant's argument that it was plaintiff who promoted the operation of the automobile at a high rate of speed is premised on the testimony that after defendant had pumped the accelerator on the automobile, plaintiff either said, 'What are you going to do, burn the cobs out?' or, 'Let's burn the cobs out of it.'

While it is true that the trial court is under a duty to instruct the jury on applicable law where the theory of law is supported by competent...