Huffman v. Buckingham Transp. Co. of Colorado

• Citation: 98 F.2d 916
• Decision Date: 15 September 1938
• Docket Number: No. 1642.,1642.
• Parties: HUFFMAN v. BUCKINGHAM TRANSP. CO. OF COLORADO, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

98 F.2d 916 (1938)

HUFFMAN v. BUCKINGHAM TRANSP. CO. OF COLORADO, Inc.

No. 1642.

Circuit Court of Appeals, Tenth Circuit.

September 15, 1938.

J. M. Roushar, of Torrington, Wyo. (M. A. Kline, of Cheyenne, Wyo., on the brief), for appellant.

Cecil M. Draper, of Denver, Colo. (W. A. Alexander and Louis C. Gerding, Jr., both of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This action was commenced in district court of Goshen County, Wyoming, against Buckingham Transportation Company and the Union Pacific Railroad Company by Walter D. Huffman, administrator of the estate of Clarence D. Huffman, deceased, to recover damages by reason of his death, alleged to have been caused in the state of Wyoming through the negligence of the transportation company and the railroad company, and duly removed to the United States District Court for the District of Wyoming.

A demurrer interposed by the railroad company having been sustained, it was eliminated as a party defendant, the action proceeding against the transportation company.

At close of the evidence, the transportation company duly interposed a motion for a directed verdict in its favor which was sustained, exceptions being saved. From the judgment rendered thereon in its favor, this appeal was prosecuted.

Plaintiff's intestate, Clarence D. Huffman, being a gratuitous guest in defendant's truck at time of accident, this case rests upon Section 72-701, Revised Statutes of Wyoming, enacted in 1931, not having been construed by Supreme Court of said state:

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a 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 gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton mis-conduct contributed to the injury, death or loss for which the action is brought."

In Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55, as to such guest statute (Public Acts Mich. 1915, No. 302, Sec. 29, amended by Act 19, Public Acts Mich. 1929, Sec. 4648, Comp.Laws 1929), the court said page 57:

"The very purpose of the guest act was to absolve an owner or driver from liability for negligence, except where he is guilty of wanton and willful misconduct or gross negligence. Upon examination of the meaning of the term `gross negligence' as judicially defined prior to the enactment of the guest act, and upon consideration of the very purpose for which this statute was enacted, and a careful reading of the statute and the correlation therein of the term with that of `wanton and wilful misconduct,' we must conclude that the term `gross negligence' means such a degree of recklessness as approaches wanton and willful misconduct."

In Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189, decided on Jan. 23, 1931, prior to the borrowing and adopting of the statute by Wyoming, its constitutional validity was sustained, same construction announced as afterwards re-announced in Oxenger v. Ward, supra, and later in Grabowski v. Seyler, 261 Mich. 473, 246 N.W. 189, wherein it is said page 190:

"The term `gross negligence,' as employed in this statute guest statute, does not mean something of less degree than willful and wanton misconduct. See Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55."

In 1933 the Legislature of South Dakota enacted its guest statute (Chapter 147, Laws 1933), taking same from Michigan.

In Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, it is said page 136:

"* * * it appears clear beyond question, not only that our Legislature adopted the Michigan statute, but also that our Legislature did not adopt any other statute," and held that:

"Words `gross negligence' in automobile guest statute do not mean merely more or greater negligence than word `negligence' alone implies, but are substantially synonymous with phrase `willful and wanton misconduct,' which means conduct transcending negligence, different in kind and characteristics and partaking of nature of deliberate and intentional wrong to appreciable extent," and that:

"To find automobile driver guilty of gross negligence or willful and wanton misconduct within automobile guest statute, jury must find that he intentionally did something he should not have done or intentionally failed to do something he should have done under such circumstances that he can be said to have consciously realized that his conduct would probably produce precise result which followed and bring harm to his guest."

Such construction of said guest statute in Michigan and South Dakota has been adhered to by their respective appellate courts without modification or variation.

Automobile guest statutes have been enacted in the additional states: California, Statutes 1931, p. 1693 (amending Statutes 1929, c. 787, p. 1580); Colorado, '35 C.S.A., Vol. 2, c. 16, Section 371, Session Laws 1931, p. 460, Section 1; Connecticut, Public Acts 1927, c. 308; Delaware, Laws, vol. 36, c. 270; Idaho, Laws 1931, c. 135; Illinois, Laws 1931, p. 779, Smith-Hurd Ann. St. c. 95½, § 58; Indiana, Acts 1929, p. 679, c. 201; Iowa, Acts 1927, c. 119 (Iowa Code 1927, Section 5026-b 1); Kansas, Laws 1931, c. 81; Kentucky, Acts 1930, c. 85; Montana, Laws 1931, c. 195; Nebraska, Laws 1931, c. 105; North Dakota, Laws 1931, c. 184; Ohio, Gen.Code, Section 6308-6; Oregon, Laws 1929, c. 401, p. 550 (replacing Laws 1927, c. 342, p. 448); South Carolina, Acts 1930, p. 1164; Texas Acts 1931, p, 379, c. 225 (Vernon's Ann.Civ.St. art. 6701b); Vermont, Public Acts 1929, p. 87, No. 78.

No guest statute existing at time of said enactment in Michigan, Wyoming, or South Dakota corresponds in language with either the parent statute in Michigan or the subsequently adopted statutes in Wyoming and South Dakota.

In Napier v. Mooneyham, Tex.Civ.App. 1936, 94 S.W.2d 564, the court construed the meaning of the Texas guest statute which, whilst not identical with that of Wyoming, liability being predicated only on the driver's "heedlessness or his reckless disregard of the rights of others," and reviewed guest statutes of other states using the same or similar terms and held that the term "embodies the same concept * * * as that embraced in the * * * definition of gross negligence." page 567.

See, also, Fly v. Swink, 17 Tenn.App. 627, 69 S.W.2d 902.

In Montana and Texas, with guest statutes, it was held that neither does a violation of traffic regulation or driving at excessive speed, nor failure to observe the law of the road, without more, constitute gross negligence. Fly v. Swink, 17 Tenn.App. 627, 69 S.W.2d 902; Napier v. Mooneyham, Tex. Civ.App., 94 S.W.2d 564, supra; Cowden v. Crippen, 101 Mont. 187, 53 P.2d 98, and authorities infra. In states not having a guest statute, the weight of authority sustains the same rule. Riggles v. Priest, 163 Wis. 199, 157 N.W. 755, and Theby v. Wisconsin Power & Light Co., 197 Wis. 601, 222 N.W. 826, 223 N.W. 791; 45 Corpus Juris, p. 67b, sec. 48b.

The Michigan guest statute was applied in accordance with the holding of the Michigan Supreme Court by the Ohio appellate court on November 23, 1931. De Shetler v. Kordt, 43 Ohio App. 236, 183 N.E. 85.

In Dakins v. Black, Sebring v. Black, 195 Minn. 91, 261 N.W. 870, and Thorsness v. Woltman, two cases, 198 Minn. 270, 269 N.W. 637, the accident in each case happening in South Dakota where, in addition to its guest statute being under consideration, the lawful speed of cars on the highways of that state was limited to 40 miles per hour. In the former case evidence was held to be insufficient to sustain a finding of gross negligence of driver of automobile by guest for injuries sustained when traveling at speed of 50 to 55 miles per hour after dark when driver collided with unlighted truck parked on highway, due to skidding in loose gravel (Rev.Code S.D.1919, Section 801, as amended by Laws 1933, c. 147), and in the latter (Thorsness v. Woltman, two cases), for injuries by guest against host, as to gross negligence, within meaning of South Dakota guest statute (Laws S.D.1933, c. 147), the syllabus by the court being as follows:

"Applying the interpretation of the South Dakota guest passenger statute (Laws 1933, c. 147) to the facts most favorably stated for plaintiffs in the cases at bar, we find that there is nothing in the record to justify a jury in finding that the defendant was guilty of gross negligence within the meaning of that statute as so interpreted." Following Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, 137.

The terms gross and wanton and wilful, when used in relation to misconduct which constitutes violation of a statute or municipal ordinance enacted to promote the public safety and which is often called negligence per se, without more, have no legal significance which imports other than simple negligence or want of due care, and are not equivalent to wilful or wanton or gross negligence as used in the Michigan, South Dakota and Wyoming guest statutes. Findlay v. Davis, 263 Mich. 179, 248 N.W. 588; Boos v. Sauer, 266 Mich. 230, 253 N.W. 278; Van Blaircum v. Campbell, 256 Mich. 527, 239 N.W. 865; Devlin v. Morse, 254 Mich. 113, 235 N.W. 812; Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Bailin v. Phoenix, 102 Cal.App. 117, 282 P. 421; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L. R. 785; Kaplan v. Kaplan, 213 Iowa, 646, 647, 239 N.W. 682; Krueger v. Krueger, 197 Wis. 588, 222 N.W. 784; De Shetler v. Kordt, supra; Dakins v. Black, supra, and Thorsness v. Woltman, supra.

In Balcer v. Pere Marquette Ry. Co., 266 Mich. 538, 254 N.W. 198, the accident occurring after dark, it is said page 199:

"The speed was excessive because it was above the statutory limit. Excessive speed alone is only...