Knudson v. Hilzer

• Decision Date: 29 June 1976
• Docket Number: No. 4571,4571
• Parties: Karen KNUDSON, Appellant (Plaintiff below), v. Violet Joan HILZER, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 680

551 P.2d 680

Karen KNUDSON, Appellant (Plaintiff below), v. Violet Joan HILZER, Appellee (Defendant below).

No. 4571.

Supreme Court of Wyoming.

June 29, 1976.

Edward P. Moriarity, Spence & Moriarity, and Ronald W. Hofer, Casper, signed the brief and appeared in oral argument on behalf of the appellant.

James W. Owens, Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, signed the brief and appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

A motion for summary judgment was granted in favor of defendant-appellee in this automobile negligence case. Plaintiff-appellant sued defendant-appellee, claiming that while a passenger in a vehicle maintained and operated by defendant, she suffered serious injury caused by the negligence of the defendant. The affidavits of the parties best provide the setting for disposition of this appeal.

The defendant's affidavit in support of her motion for summary judgment alleges as follows:

'1. That I am the defendant in the above-entitled cause and have personal knowledge of the matters contained herein, and make this affidavit in support of defendant's Motion for Summary Judgment.

'2. That on July 18, 1974, I was going to Lingle, Wyoming to have some oats, owned by my husband and me, rolled and asked the plaintiff if she would ride along with me and keep me company. The plaintiff had no interest whatever in tese oats and did not and has not ever purchased or otherwise used them.

'3. That we (myself and plaintiff) proceeded to Chester Brown's elevator in Lingle, Wyoming. At no time did plaintiff purchase any gas for the trip and at no time did she have any control over my pickup or even attempt to exercise any control over my vehicle. I chose the route of travel and purchased the gas for the trip in Natrona County, Wyoming.

'4. That when we arrived at the Brown elevator in Lingle, the plaintiff decided to purchase three bags of oats for her own use. I assume that this was because these oats were cheaper than the Casper prices. Prior to our trip, plaintiff had not, to my knowledge, intended to purchase these oats and I did not have anything to do with this purchase and they were not in anyway whatever part of my oats, which I had brought from Casper to be rolled at Lingle.

'5. That we returned to Casper via the old Glenrock Highway (U.S. 87) and hit a severe thundershower which came up out of nowhere. I was preceeding (sic) at approximately 50-55 miles per hour at that time and as we rounded a curve, my truck slid off the highway. I had not been drinking at the time and believe the accident was caused by the slick condition of the highway due to the sudden rain storm.'

The counter-affidavit of the plaintiff resisting the motion alleged the following as the true facts:

'1. That your affiant is the plaintiff in the above entitled cause and has personal knowledge of the matters contained herein, and makes this Affidavit in Defense of defendant's Motion for Summary Judgment.

'2. That your affiant had the day of July 18, 1974, off and that defendant herein requested that your affiant accompany her on a trip to Lingle, Wyoming, as she was to have some oats rolled at Brown's elevator in Lingle, Wyoming.

'3. That prior to leaving Natrona County, Wyoming, your affiant explained to the defendant herein that she was out of oats and that we could proceed to Lingle, Wyoming where your affiant would purchase oats, and they would in turn, be hauled in her pickup.

'4. That proceedings (sic) out of Lingle, Wyoming, the vehicle in which the parties were riding ran out of gas on the main tank and that your affiant personally switched the tank on the vehicle as defendant was not able, and that affiant's assistance was required to avoid an accident.

'5. That your affiant and defendant herein owned livestock on a 1/3 basis and that the parties hereto were generally in a joint venture relative to this livestock.

'6. That the whole purpose of this trip on July 18, 1974, was to obtain feed for the parties' respective livestock and to promote their mutual interest and that of the defendant herein.

'7. That your affiant has ridden in vehicles before and would estimate the speed of the pickup at between 60 to 65 mph., and that immediately prior to the accident defendant said, 'We have got to get these god dam (sic) oats home, they're getting wet,' and she proceeded to speed the vehicle up just prior to the accident.

'8. Further affiant knows that the vehicle was proceeding at an excessive speed for the conditions that existed at the time.'

The trial judge, after taking argument of counsel under advisement, issued a short letter opinion, in pertinent part as follows:

'* * * I have tended toward the view that I should shy away from summary judgment whenever the evidence presented a reasonable chance of fact issue. Here, however, the evidence of 'mutual interest', much less 'control and direction' seems to me so thin that the motion should be granted.'

The trial judge in the order granting the summary judgment added the following fact to those appearing in the affidavits, '* * * and the plaintiff's counsel having admitted to the Court that the oats were not fed to cattle jointly owned by the parties; the Court FINDS generally in favor of the defendant and against the plaintiff, * * *.'

The issues as presented by the plaintiff, are:

,1. Did the trial judge decide a fact issue presented by opposing affidavits? Our answer will be yes.

2. Does the guest statute ¹ apply? Our answer will be that we do not know because that will depend upon the findings of the trier of the facts.

3. If our guest statute applies, is it constitutional? Our answer will be that we do not reach this question and render no opinion in that regard.

4. Has the guest statute been suspended by the comparative negligence statute? Our answer will be that we do not reach this question and render no opinion in that regard.

The plaintiff's complaint set out only one ground for recovery. The plaintiff's claim there was based upon the theory that this is a case where the two parties were engaged in activities furthering a joint venture and defendant was receiving a direct benefit from transporting the plaintiff. This then, if true, would remove her from the guest statute. It would appear that the trial judge's determination was based upon this position of the plaintiff because of his letter comments and the expressions of the court in the order he signed granting summary judgment. We gather that to be the sole basis for granting the summary judgment.

For the moment, we will depart from that subject for reasons that will later appear and move to plaintiff's contention that if the guest statute applies, the court's granting of summary judgment was improper because there is a material question of fact as to defendant's gross negligence. The defendant asserts here that the guest statute was never argued by counsel or considered by the trial court in any aspect. We do not know that from the record. We would be required to guess. If the parties want us to know what was argued and what was not, a record of arguments should be kept and sent to this court. We do know that the defendant raised the question that plaintiff was a guest in the defendant's automobile by pleading that fact in her answer as an affirmative defense and the applicability of the guest statute was argued here.

The parties have apparently overlooked the proposition that under our two-pleading system, the plaintiff was not required to plead gross negligence or willfull and wanton misconduct unless required by the court to reply. Rule 7(a), W.R.C.P. ² By Rule 8(d), W.R.C.P., '* * * Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.' (Emphasis added.) The gross negligence of defendant would therefore be beofre the court in avoidance as an issue. When the defendant raised the defense that the plaintiff was a guest, the burden was shifted to plaintiff of establishing gross negligence or willfull and wanton misconduct causing plaintiff's injuries. In an action by a guest against the driver, it is incumbent upon the guest to prove gross negligence on the driver's part to support a cause of action. Fleming v. Lawson, 10 Cir. 1956, 240 F.2d 119. Gross negligence is an indifference to present legal duty and utter forgetfulness of legal obligatios which our statute discloses must exist before liability arises. Arnold v. Jennings, 1956, 75 Wyo. 463, 469, 296 P.2d 989, 990, quoting language approved in Hawkins v. L. C. Jones Trucking Co., 1951, 68 Wyo. 275, 300, 232 P.2d 1014, 1023.

This court approved language in Meyer v. Culley, 1952, 69 Wyo. 285, 307, 241 P.2d 87, 96, to the effect that the existence of gross negligence must be determined from the facts and circumstances in each case. It is for a jury to decide whether or not there is gross negligence when reasonable minds might draw different conclusions from conflicting evidence. What would amount to gross negligence under some circumstances might be only slight negligence under a different set of circumstances. That is why it is a jury question of fact for determination. See also Cederburg v. Carter, Wyo.1968, 448 P.2d 608, 610, and cases there cited.

Here, on the question of speed alone, there is a sharp conflict. Plaintiff will testify that the defendant was going 60 to 65 miles per hour and speeded up the truck to a rate higher than that, just before it slid off the highway, to keep the grain from getting wet. It is her claim that because of the severe thunderstorm in progress, which is undisputed, that was excessive speed for the conditions that existed at the time. Defendant's claim is that she was going only 50 to 55 miles per hour and, in rounding a curve, the slippery condition of the road caused her vehicle to slide off the highway without any...