Gunderson v. Sopiwnik

• Decision Date: 22 October 1954
• Docket Number: No. 9437,9437
• Parties: Belle GUNDERSON, Plaintiff and Respondent, v. Steve SOPIWNIK, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 510

66 N.W.2d 510

75 S.D. 402

Belle GUNDERSON, Plaintiff and Respondent, v. Steve SOPIWNIK, Defendant and Appellant.

No. 9437.

Supreme Court of South Dakota.

Oct. 22, 1954.

Robert Wallin, Hettinger, N. D., Jackson & Krause, Lemmon, for plaintiff and respondent.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

RUDOLPH, Judge.

Plaintiff brought this action to recover damages for injuries she received while a passenger in the automobile owned and driven by defendant. Plaintiff recovered judgment and defendant has appealed.

The facts most favorable to plaintiff are the following: Plaintiff and defendant are sister and brother. Plaintiff is nine years older than defendant and was married and left home when defendant was thirteen years old. The family home was Minneapolis and plaintiff had been home four times during the fourteen years she had been married. On one of these visits defendant was at home, that being the occasion of his marriage in 1950. This was the only time plaintiff had seen defendant during eight years preceding July 4, 1952. They did not correspond but through their parents each had knowledge of the other. Plaintiff's home was Hettinger, N. D., defendant's Minneapolis.

Defendant, his wife and child, left Minneapolis on July 3, 1952 on a contemplated trip to the Black Hills. They arrived at plaintiff's home in Hettinger on the morning of July 4. There had been no express invitation on this occasion but plaintiff had expressed a desire to have members of the family visit her. The afternoon of the 4th, plaintiff, defendant and their families, went to Bowman to a rodeo. They made the trip in defendant's car as plaintiff and her husband were without a car at the time. On this trip plaintiff's husband paid two dollars for gas and then paid for the tickets to the rodeo.

The next day, Saturday, defendant had a car repair bill of twenty-five dollars, and when he came home and announced that because of this expense the 'trip to the Hills is off'. He said he would stay in Hettinger until Wednesday or Thursday and then go back to Minneapolis, in other words he would extend his visit in plaintiff's home. There was some discussion about plans for Sunday and finally at plaintiff's suggestion it was agreed they would go to Lemmon to attend a show which plaintiff wanted to see, and also go to Petrified Park. It was understood that the trip would be made in defendant's car. Plaintiff's children and defendant's child were to be cared for at home by a younger sister of plaintiff and defendant who plaintiff said she would pay for staying with the children.

The party left for Lemmon about five o'clock Sunday afternoon on Highway 12. Defendant drove the car and his wife was in the front seat. Plaintiff and her husband sat in the rear. Plaintiff testified that the road to Lemmon was a new oil mat, smooth and wide. As they traveled plaintiff was sitting with her right leg under her and visiting with defendant's wife. Defendant traveled about the same speed during the trip, which was 'fast--quite fast', but plaintiff never complained or cautioned him to drive slower. The last plaintiff remembered was that she saw the drive-in threater near Lemmon as she was looking out to the north while the car was traveling east.

The accident occurred at the point where Highway 73 intersects Highway 12, west of Lemmon. Vehicles approaching this intersection from the east on Highway 12 can be observed for a distance of 1,000 feet. To the west of the intersection the highway is straight and level for a distance of 4,000 feet. Defendant was approaching the intersection from the west. This intersection is in the shape of a T, in that Highway 73 does not continue north. Highway 73 spreads out before joining Highway 12, one fork for traffic intending to turn west, the other for east bound traffic. The distance between these two forks on Highway 12 is 225 feet. On Highway 12 about 400 feet west of the west fork of Highway 73 there is a 'Slow' sign. Defendant testified that as he approached this 'Slow' sign he took his foot from the accelerator, and was confirmed in this by plaintiff's husband, who further testified that in his estimation defendant was driving faster than sixty miles an hour on the trip but that he would not consider the speed excessive.

Defendant observed a car approaching the intersection from the east as he was about at the 'Slow' sign. The car approaching from the east will be referred to as the Engle car. When first observed by defendant the Engle car was about 300 feet east of the the east fork of the intersection. Defendant replaced his foot on the accelerator and continued on into the intersection at approximately his prior speed. There was a car stopped in the east fork of the intersection awaiting traffic on Highway 12 to pass. The Engle car was traveling about 25 to 30 miles an hour. As defendant was proceeding through this intersection as above detailed the Engle car turned across his path apparently intending to go south on the east fork of Highway 73. The collision occurred in the south lane of the highway eleven feet east of the east fork of Highway 73, between the left front of defendant's car and the right front of the Engle car. Defendant's car skidded eleven feet before impact, and the cars came to rest about ten feet southeast of the place of impact. Both cars were demolished. Defendant's wife and Engle were killed, and plaintiff and her husband badly injured.

Two questions are presented. First, was plaintiff a guest passenger in defendant's car within the meaning of SDC 44.0362. We quote the statute:

'Guest in automobile can recover damages only for willful and wanton misconduct. 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; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself.'

Second, if a guest, was the evidence sufficient to submit to the jury the question of whether the conduct of defendant was 'willful and wanton' within the meaning of the statute.

The question of whether an automobile passenger is a guest within the meaning of our guest statute has been before this court on several occasions. In the case of Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519, 520, it was 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.'

This rule was in effect affirmed in the case of Forsling v....