Kleinhesselink v. Porterfield, 9620

• Decision Date: 16 May 1957
• Docket Number: No. 9620,9620
• Parties: Arthur KLEINHESSELINK, Plaintiff and Respondent, v. S. A. PORTERFIELD, Jack Porterfield, and Arthur Kleinhesselink, Executor of the Estate of Edward Kleinhesselink, and/or H. C. Moret, Temporary Administrator or Executor of the Estate of Edward Kleinhesselink, or any other person or persons acting as Temporary Administrator of the Estate of Edward Kelinhesselink, Deceased, Defendants, of which H. C. Moret, Temporary Administrator or Executor of the Estate of Edward Kleinhesselink, is Appellant.
• Court: South Dakota Supreme Court

Page 191

83 N.W.2d 191

76 S.D. 577

Arthur KLEINHESSELINK, Plaintiff and Respondent, v. S. A. PORTERFIELD, Jack Porterfield, and Arthur Kleinhesselink, Executor of the Estate of Edward Kleinhesselink, and/or H. C. Moret, Temporary Administrator or Executor of the Estate of Edward Kleinhesselink, or any other person or persons acting as Temporary Administrator of the Estate of Edward Kelinhesselink, Deceased, Defendants of which H. C. Moret, Temporary Administrator or Executor of the Estate of Edward Kleinhesselink, is Appellant.

No. 9620.

Supreme Court of South Dakota.

May 16, 1957.

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

Morgan & Fuller, Mitchell, for plaintiff and respondent.

SMITH, Presiding Judge.

This is an action for damages for personal injuries received when an automobile, in which plaintiff was an occupant and the above named Edward Kleinhesselink was the driver, collided with a tractor trailer, of which Jack Porterfield was the driver and S. A. Porterfield the owner. Trial before a court and jury resulted in a very substantial verdict and judgment for plaintiff against the Temporary Administrator of the Estate of Edward Kleinhesselink, and in separate verdicts and judgments absolving the Porterfields from liability for plaintiff's injuries. The case is here on appeal by the defendant, the Temporary Administrator of the Estate of Edward Kleinhesselink. Under objections to testimony, motions for directed verdict and judgment n. o. v. and assignments of error predicated thereon, appellant presents two principal propositions. First: Did the trial court err in admitting the testimony of Ted Heemstra wherein he repeated an utterance of Edward Kleinhesselink? and, second: The evidence is insufficient to support a finding by the jury that plaintiff was other than a guest without compensation for his transportation.

Edward Kleinhesselink and Arthur Kleinhesselink, father and son, lived on neighboring farms near Alton, Iowa. The father had been engaged in farming and cattle-feeding operations for many years. His son, Arthur, worked with him as long as he was at home. Some nineteen years prior to the time in question the son married, purchased some land from his father, and since has been independently engaged in like operations. In addition to working his own farm, the son leased a portion of the home farm from his father. They exchanged work in the operation of the two places. In November 1954 the father was trying to buy some heavy cattle to put on feed for the market. Some two weeks before the day of the collision the father had a talk with the witness, Ted Heemstra, an old friend and former neighbor, about a proposed trip to a sale barn at Kimball, South Dakota, where livestock auction sales are regularly held. The proposed trip was postponed until the plaintiff son could go along. On November 22, 1954 the father and son had a conversation after which they left for the Sioux City Stock Yards where they looked at six or seven bunches of cattle but made no purchases, and returned to their homes. That afternoon the father returned to the son's farm and a further conversation was had between them. The trial court sustained objections to the proof of these conversations between the father and son. The following morning the father picked the son up at his farm; then drove to Orange City where Heemstra entered the car; and the three traveled on to Kimball, South Dakota, arriving there about one o'clock. They went directly to the sale barn where they looked at cattle and attended the afternoon sale. The son and father sat side by side during the sale and they talked about the cattle as they went through. Although the father bid on several bunches of cattle, no cattle were purchased during afternoon. They had supper at Kimball and returned to the sale ring. During the night sale the son began to bid on calves as they were offered in singles and pairs, and succeeded in picking up 22 head weighing 450 to 500 pounds. The son testified that he had not intended to buy any cattle when he started for Kimball. The end result, however, was that the father made no purchases, and the son bought the described calves. They left Kimball at about 12:30 A.M. with the father driving. The collision occurred thirty miles to the east at a point where the road turns to the south. Both father and son were severely injured; the father passed way as a result of his injuries about two weeks later.

Although the complaint charged the father with willful and wanton misconduct, the court refused to submit the case on that theory. However, following our holding in Antonen v. Swanson, 74 S.D. 1, 48 N.W.2d 161, 28 A.L.R.2d 1, it did submit the case on the theory that the evidence would support a finding by the jury that the negligence of the father was a proximate cause of the collision and the son was a passenger for the benefit of his father under our holdings dealing with the guest statute, SDC 44.0362. As we have indicated the jury returned a verdict for plaintiff. Thus we come to a discussion of the propositions urged by the appellant. That discussion must be placed against a background of statutory and declared law.

Our guest statute reads:

'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; * * *' SDC 44.0362.

In Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519, at page 520, it was written, '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.'

In Scotveold v. Scotvold, 68 S.D. 53, 298 N.W. 266, at page 271, in dealing with the nature of the benefit one must bestow to become a passenger rather than a guest, we stated, it must be '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.'

Such is the settled construction of the cited statute. Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510.

In substance the utterance of the father which Heemstra was permitted to repeat to the jury was, 'Let's wait until Art (the son) can go' and 'He said he wanted Art to help him look at some cattle.' The objection and motion to strike were upon the ground that the testimony was incompetent, immaterial and irrelevant to the issues, and purely hearsay.

The position that the challenged testimony of the witness Heemstra was inadmissible under the hearsay rule is without sound basis. It would, we believe, have been ruled admissible as against the objection by accepted authority under the common law. The cause of action arose as against the father, and survived his death under SDC Supp. 33.0414-1. The plaintiff was seeking to enforce that liability against one with whom the father is in every respect completely identified. The utterance of the father which the court admitted constituted an admission of the father unfavorable to the theory for which the administrator was contending in this action. Hence, it was relevant and material and should not have been excluded as hearsay. 31 C.J.S. Evidence Secs. 270 and 272, pp. 1022, 1023; III Wigmore, Evidence, 3d Ed., Sec. 1048; Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L.J. 355; McCormick, Evidence Sec. 239.

However, no matter how the objection should have been ruled according to common law, no question remains as to the proper ruling under our law since the...