Jennings v. Hodges

Decision Date18 June 1964
Docket NumberNo. 10065,10065
Citation80 S.D. 582,129 N.W.2d 59
CourtSouth Dakota Supreme Court
PartiesKathryn JENNINGS, Plaintiff and Respondent, v. Gladys HODGES, Defendant and Appellant.

Hanley, Costello & Porter, Rapid City, for defendant and appellant.

William M. Rensch, Rapid City, for plaintiff and respondent.

BIEGELMEIER, Presiding Judge (on reassignment).

In her complaint plaintiff alleged she was a passenger in an automobile operated by defendant, that by reason of defendant's negligence and lack of ordinary care defendant drove the automobile so as to collide with another vehicle. The plaintiff received injuries as a result thereof and prayed for the usual damages. It seems to be conceded defendant was negligent and that her negligence was not wilful or wanton. The principal issue on trial was whether the plaintiff was a guest without compensation, and thus her cause of action barred by SDC 44.0362, or a passenger. Defendant made motions for directed verdicts which the trial court overruled. The jury returned a verdict for plaintiff in the amount of $10,500. Defendant's motion for new trial was denied and she appealed.

Plaintiff and defendant are sisters; however, plaintiff had resided in Illinois for many years and had been issued a driver's license by that state which was valid there. She and her husband had visited in South Dakota in the summer of 1961 and thereafter returned late in the summer to seek employment for the husband. They lived in a trailer which the husband purchased, but the employment was interrupted and she went to visit the defendant at her home in Spearfish. Defendant's husband had generally driven their automobile, but since his recent death defendant had made application for and had been issued an instruction permit under the provisions of SDC 1960 Supp. 44.03B04 entitling her to operate a motor vehicle when accompanied by a licensed operator having at least one year of driving experience. It appeared that the parties and defendant's children had been confined to the house or 'cooped up' for some time as the children had been ill and defendant felt like getting out with the children and going for a drive, a 'needed outing' as defendant testified. There was testimony that the house in which defendant lived belonged to her brother-in-law and that was business between them that the plaintiff didn't know anything about. With that background it appeared defendant desired to make a trip to the home of her brother-in-law, Lewis Hodges who resided in Belle Fourche on U. S. Highway 85 and she asked plaintiff to go with her. As to the decision between the parties with reference to the trip plaintiff testified:

'Q. Tell the jury what was said as you remember it. A. Well, she asked me to go along and I hesitated and told her I didn't feel like it because it was just a feeling that I shouldn't go. I just had that feeling that I wasn't supposed to go and she kept after me to go. Well, finally, she said, 'I want you to go because you've got the driver's license' and she said, 'I have to have somebody with me'. Well, to please her I went.'

On cross-examination, plaintiff testified:

'Well, I didn't want to go, though. The only reason I went was because she asked me to go. * * * That's the only reason I went. I wasn't thinking of her as my sister. I was thinking of her because I knew she had to have somebody with her and I went because I was there.'

In driving east on the roadway from the Lewis Hodges house so as to enter U. S. Highway 85 plaintiff stopped her vehicle before entering the highway; she waited while three or more vehicles going in a southerly direction passed by as she intended to turn to the right and go back to Spearfish. She then proceeded to make a right turn, but her turn was too wide and she passed over to the east side of the highway. About that time another automobile proceeding in a northerly direction reached that spot and a collision occurred between them. The plaintiff received the injuries complained of as a result of this collision. The trial court on this issue instructed the jury as follows:

'You are instructed that the South Dakota statute provides: 'No person transported by the operator of a motor vehicle as a guest, without compensation for transportation, shall have a cause of action for damages against such operator for any injury in case of an accident unless such accident shall have been caused by the willful and wanton misconduct of the operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury for which the action is brought;'.

"Compensation's as used in this statute is not limited to payment in money or other tangible things alone but may include any substantial benefit flowing from the passenger to the owner or operator, which is sufficiently real, tangible and substantial to serve as the inducing cause of the transportation, and to operate to completely overshadow any considerations of mere hospitality growing out of friendship or relationship.'

This instruction in effect set out the rule consistently followed in opinions of this court. It adhered to the law stated in Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273, in these words: 'While the statute uses the word 'compensation' this does not mean only payment in money or other tangible thing. We have held that it also contemplates some benefit accruing from the transportation to the owner or operator of the motor vehicle. Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519.' Many of these opinions are cited in Cluts v. Peterson and in Peterson v. Snell, S.D., 127 N.W.2d 142, decided this term. Reviewing them will indicate the verity of the statement in Cluts v. Peterson, that 'The meaning of the law is pretty well established by our decisions but difficulty is often encountered in its application.' In Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169, recovery as a passenger was permitted by a member of a community band against the driver of the automobile. Defendant was an employee of a dairy with no financial or business interest either in the dairy, carnival, booster trip or the band of which he was a member other than any person employed or living in the community. Indirectly the opinion states defendant and his employer were prospective beneficiaries of the carnival, but the employer was not a defendant and plaintiff paid nothing for his ride and received nothing for making the trip and it is difficult to locate a financial or business interest in this relationship.

Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410, approved recovery as a passenger of a railway employee who was asked in a tavern one evening to fix the lights on defendant's car. It appeared plaintiff had installed a battery in defendant's car some time prior thereto, but it does not appear that was his business. After checking the battery cables plaintiff and defendant who were friends drove from one tavern to another imbibing therein and finally, on a drive out of the city, the accident occurred and plaintiff was injured. It appeared plaintiff was attempting to check the wiring at the time.

Defendant argues the benefit intended must be such as to enhance the commercial interests of the driver, a conclusion drawn from her reference to Roberts v. Craig, 124 Cal.App.2d 202, 268 P.2d 500, 43 A.L.R.2d 1146 where the trip was to secure her husband's salary check, or if the trip is for pleasure the contract between the parties for the transportation must be a business arrangement. Basis for the latter is said to be the quotation from Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140 quoted in McMahon v. DeKraay, 70 S.D. 180, 16 N.W.2d 308. This contention is further revealed by defendant's requested instruction which the trial court refused, requiring the objective of the transportation to be of a business or commercial nature.

While the business purpose of the parties may affect the status of the occupant in some instances, it is not so in all. A person, who by reason of friendship only or as a social companion to the owner or operator, may still be a guest though the owner be on a business trip. It is not necessarily the purpose of the owner which determines the status of the occupant as passenger or guest; it may be the reason or purpose the occupant accompanies the owner.

Defendant requested plaintiff to accompany her because the law required the operator to have an experienced licensed driver present. This was the only reason plaintiff went on the trip. It was for the jury to determine if it was the 'inducing cause of the transportation' which would overshadow considerations of mere hospitality growing out of friendship or their relationship. Whether the purpose of defendant in making the trip was, in her opinion, of therapeutic value after being cooped up with her sick children or some business with reference to her rented house or for any purpose she felt required the trip, it was her decision and desire to make it and she insisted plaintiff accompany her. The jury found the furnishing of driving qualifications and her presence was benefit and compensation enough to remove plaintiff from the guest statute and was not so overshadowed as above stated; we cannot say that finding is unsupported by the evidence.

While defendant in Roberts v. Craig, supra, made the trip to collect her husband's salary check, the California Supreme Court cited and relied on Kruzie v. Sanders, 23 Cal.2d 237, 143 P.2d 704, where defendant-owner's purpose was Christmas shopping and defendant asked plaintiff to aid her. Chief Justice Gibson in the Kruzie opinion stated our rule that 'Guest statutes must be interpreted in accordance with the intention of the Legislature. * * * The statute was not designed to bar recovery where, as here, the driver, rather than the person transported, benefited from the trip. It was not intended to prevent recovery for the negligence of a...

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