Melby v. Anderson

• Citation: 266 N.W. 135,64 S.D. 249
• Decision Date: 02 April 1936
• Docket Number: 7882
• Parties: PAULINE J. MELBY, Executrix of the Estate of Olaf Melby, deceased, Respondent, v. HARTVIG N. ANDERSON, Appellant.
• Court: South Dakota Supreme Court

64 S.D. 249

266 N.W. 135

PAULINE J. MELBY, Executrix of the Estate of Olaf Melby, deceased, Respondent, v. HARTVIG N. ANDERSON,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Roberts County, SD

Hon. Van Buren Perry, Judge

#7882—Reversed

Danforth & Davenport, Sioux Falls, SD

Attorneys for Appellant.

McFarland & Paterson, Watertown, SD

L.A. Melby, Webster, SD

Attorneys for Respondent.

Opinion Filed Apr 2, 1936

RUDOLPH and CAMPBELL, Judges.

This action, brought by the administratrix of the estate of Olaf Melby, deceased, who at the time of his death was a guest passenger in the defendant’s car, involves a construction of chapter 147, Laws 1933, the so-called guest statute, which, so far as material here, is as follows: “Provided that no person transferred by the owner or operator of a motor vehicle as his guest without payment 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 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 misconduct contributed to the injury, death or loss for which the action is brought.

When our Twenty-Third Legislature assembled in 1933 “automobile guest statutes” had previously been passed and published and were available for examination and comparison in seventeen states, as follows:

California, Statutes 1931, p. 1693 (amending statutes 1929, c. 787, p. 1580) Connecticut, Public Acts 1927, ch. 308; Delaware, Laws, vol. 36, ch. 270; Idaho, Laws 1931, ch. 135; Illinois, Laws 1931, p. 779 (Smith-Hurd Ann. St. c. 95½, § 58); Indiana, Acts 1929, p. 679, c. 201; Iowa, Acts 1927, ch. 119 (Iowa Code 1927, § 5026-b 1); Kansas, Laws 1931, ch. 81; Kentucky, Acts 1930, ch. 85; Michigan, Public Acts 1929, p. 44, No. 19; Montana, Laws 1931, ch. 195; Nebraska, Laws 1931, ch. 105; North Dakota, Laws 1931, ch. 184; Oregon, Laws 1929, ch. 401, p. 550 (replacing Laws 1927, ch. 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.

The material portion of the Michigan statute reads as follows: “Provided, however, That 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 misconduct contributed to the injury, death or loss for which the action is brought.

It will be observed that our statute (chapter 147, Laws 1933) follows the Michigan statute exactly save only that the second word “however” is omitted, the sixth word “transported” reads in our statute “transferred,” a very palpable clerical error; and the word “a” before the words “cause of action” in the third line of the Michigan statute as quoted above is omitted in our statute. None of the statutes above cited corresponds in language with the Michigan statute.

Upon a consideration of these statutes, 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 we do not face here the dilemma suggested in Pierson v. Minnehaha County (1910) 617, Ann. Cas. 1913B, 386, where the court points out that at the time of the South Dakota legislative act “there were a number of other states having a similar statute” and inquires, “How is it possible, under such circumstances, for this court to determine, with absolute certainty, from what state our Legislature copied or adopted a law?” In the present case an inspection of the existing statutes demonstrates clearly and affirmatively that our Legislature did “copy and adopt” the Michigan law and no other.

Before we thus took over the Michigan statute it had been discussed and construed by the Supreme Court of Michigan in at least eleven different cases during a period extending from January, 1931, to January, 1933, as follows:

Naudzius v. Lahr (Jan. 1931) 253 Mich. 216, 74 ALR 1189, 30 NCCA 179; Oxenger v. Ward (Jan. 1932) 256 Mich. 499, 240 N.W. 55; Van Blaircum v. Campbell (Jan. 1932) 256 Mich. 527, 239 N.W. 865; Finkler v. Zimmer (April 1932) 258 Mich. 336, 241 N.W. 851; Bobich v. Rogers (April 1932) 258 Mich. 343, 241 N.W. 854; Boyle v. Moseley (April 1932) 258 Mich 347, 241 N.W. 849; Morgan v. Tourangeau (Sept. 1932) 259 Mich. 598, 244 N.W. 173; Willett v. Smith (Sept. 1932) 260 Mich. 101, 244 N.W. 246; Wyma v. Van Anrooy (Oct. 1932) 260 Mich. 295, 244 N.W. 478; Mater v. Becraft (Jan. 1933) 261 Mich. 477, 246 N.W. 191; Grabowski v. Seyler (Jan. 1933) 261 Mich. 473, 246 N.W. 189.

Conceding that the prior Michigan interpretation of the statute is not binding upon us “unless we feel that such construction is sound and based upon reason” (State v. Nelson (1931) 768, 76 ALR 1226), it is nevertheless the general presumption that the South Dakota Legislature intended to enact a law with the meaning that the courts of Michigan had previously placed upon the Michigan statute which our Legislature adopted. Woodbine Savings Bank v. Yager (1932) 245 N.W. 917; State ex rel. Byrne v. Ewert (1916) 156 N.W. 90; Plowman v. Morden (1914) Murphy v. Plankinton Bank (1904) l00 NW 614; Tobin v. McKinney (1900) 91 AmStRep 688. State v. Reddington (1895) 64 N.W. 170, Kent v. Dakota, etc., Ins. Co (1891) 50 N.W. 85; White v. C.M. & St. P. Ry. (1889) 5 Dak. 508, 41 N.W. 730.

A fair statement of the net result of these Michigan cases construing this statute prior to our adoption thereof seems to us about as follows: That “gross negligence,” as used in the statute, is really a misnomer, and that the conduct described by those words transcends negligence and is different in kind and amounts to willful, wanton, or reckless misconduct as distinguished from negligence even though spoken of as gross negligence. Its characteristic is willfulness rather than inadvertance. That there is no such thing as “gross negligence” in the sense of great or much negligence, and the term as implied in the statutes does not mean something of a less degree than willful or wanton misconduct. That to create liability under the statute there must be (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) omission to use such care and diligence to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another.

Practically the same result as a matter of construction of analogous statutes has been reached in other jurisdictions which, as is also true in this jurisdiction, do not recognize degrees of negligence and which are unwilling to define the term gross negligence as being merely more or greater negligence than is implied by the word negligence standing alone without the adjective gross. For a good discussion of the matter in this regard, see Stout v. Gallemore (1933) 138 Kan. 385, 26 P. 2d 573. See, also, Sayre v. Malcom (1934) 139 Kan. 378, 31 P. 2d 8, and Murrell v. Janders (1935) 141 Kan. 906, 44 P. (2d) 218.

We appreciate that the standard of conduct set up by the Michigan court, as being within the meaning of the statute, is the kind of conduct that we said in Wittstruck v. Lee, 92 ALR 1361, could not as a practical matter be properly determined by a jury as distinguished from negligent conduct. In the Wittstruck-Lee case the question involved was whether contributory negligence was a defense which could be pleaded against this kind of conduct of which we are speaking. A holding contrary to that of the Wittstruck-Lee case seems to us to tend toward the recognition of the doctrine of comparative negligence in that it in substance (though not in words) encourages the jury to weigh the relative negligence of the plaintiff and defendant in cases where contributory negligence is pleaded in actions for negligent tort. We are opposed to the doctrine of comparative negligence and do not believe the courts ought to try to submit this particular standard of conduct to the jury in ordinary negligence cases. However, in view of the fact that the Legislature has seen fit to adopt the Michigan statute, we accept it as such, and with it the construction that had theretofore been placed upon the statute by the Michigan court. The statute applies, of course, only to the so-called guest cases, and in this class of cases there will be no temptation of the jury to weigh the relative negligence because the only question involved will be whether or not the conduct of the defendant is such that it comes within the meaning of the statute.

We conclude, therefore, as follows: This statute was taken from the law of Michigan, and will be construed and interpreted in the light of the Michigan decisions relating to it before our Legislature adopted it. Under those decisions, the words “gross negligence” are, for practical purposes, substantially synonymous with the phrase “wilful and wanton misconduct.” Willful and wanton misconduct (and gross negligence as it is employed in this statute) means something more than negligence. They describe conduct which transcends negligence and is different in kind and characteristics. They describe conduct which partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong. To bring the conduct of the defendant within the prohibition of this statute the jury must find as a fact that defendant...