Holdhusen v. Schaible

• Court: South Dakota Supreme Court
• Writing for the Court: ROBERTS, J.
• Citation: Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392 (S.D. 1932)
• Decision Date: 04 October 1932
• Docket Number: 7324,7325.
• Parties: HOLDHUSEN v. SCHAIBLE. WARNECKE v. SAME.

244 N.W. 392

60 S.D. 275

HOLDHUSEN v. SCHAIBLE.

WARNECKE v. SAME.

Nos. 7324, 7325.

Supreme Court of South Dakota

October 4, 1932

Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.

Actions by J. F. Holdhusen, administrator of the estate of Louis A Warnecke, deceased, and by Emma Warnecke, respectively against Frank Schaible. From judgments for plaintiffs and orders overruling defendant's motions for new trial defendant appeals.

Affirmed.

Tom Kirby, of Sioux Falls, and Corrigan & Walton, of Aberdeen, for appellant.

J. M. Berry, of Ipswich, for respondents.

ROBERTS J.

J. F. Holdhusen, as administrator of the estate of Louis A. Warnecke, deceased, instituted action against the defendant under the death by Wrongful Act Statute (Rev. Code 1919, § 2929). Emma Warnecke, wife of decedent, also brought an action to recover from the defendant damages for personal injuries alleged to have been sustained while she was riding in an automobile owned and driven by the defendant. The two actions, arising out of the same accident, were by the agreement of the parties consolidated for the purposes of trial. The trial below resulted in a verdict and judgment for the plaintiff in each case.

The Warneckes resided in the city of Aberdeen. On the morning of the accident, Mrs. Warnecke stated to the defendant that she wished to visit friends near Ipswich, and he replied, "I will take you out there." On the return trip Mrs. Warnecke and her younger son sat in the front seat with the defendant, and the husband, Louis Warnecke, the older son, and a neighbor boy sat in the rumble seat of the car. The defendant passed a car driven by Nathan Bird going in the same direction. Bird then undertook to pass the defendant, and not succeeding in so doing, followed the defendant for at least two miles at a speed of forty-five to fifty-five miles per hour. The defendant had overtaken a car driven by J. F. Holdhusen, and undertook to pass the Holdhusen car. In such attempt the defendant drove his car over the edge of the traveled highway into the ditch on the left-hand or north side of the road. The car ran along in the ditch approximately one hundred forty feet, and grazed a telephone post near the edge of the ditch. Louis Warnecke, riding on the left side in the rumble seat, struck his head against this post, causing his death. When defendant attempted to drive the car back onto the grade, it overturned, as a result of which the plaintiff Emma Warnecke received the injuries for which she seeks to recover.

Errors relied upon for reversal of the judgments and orders overruling motions for new trial are: First, that the undisputed evidence establishes that the defendant conveyed the plaintiff wife and her deceased husband at her request and as their agent, and that they therefore assumed all the risk of transportation; second, that if the relationship of host and guest existed, plaintiff wife and her deceased husband acquiesced in the negligence of the defendant; and, third, that the evidence does not establish gross negligence on the part of the defendant.

The liability of an owner of an automobile to a gratuitous guest for injuries resulting from the negligence of the former was considered in the case of Barger et al. v. Chelpon (S D.) 243 N.W. 97. The rule there announced is that the driver of an automobile is liable for injuries to an invited guest if he fails to exercise care not to increase the danger to the guest or to create a new danger. Defendant contends that the evidence establishes the fact that Mrs. Warnecke requested the defendant to convey her and her family to visit friends near Ipswich and that a distinction prevails between the duty owing to an invitee and a self-invitee. Defendant includes in his citation of authorities in support of his contention the case of Lutvin v. Dopkus, 94 N. J. Law, 64, 108 A. 862, which in effect holds that a person gratuitously conveyed in the automobile of another at his own request is a licensee and the legal obligation imposed upon the driver is that of refraining from the perpetration of acts wantonly or willfully injurious. The weight of authority, however, is in support of the rule that a driver of an automobile owes to a guest the duty to exercise ordinary care not to increase the danger to the guest or to create a new danger whether the person is an invited or a self-invited guest. The reasoning of the...