Meyer v. Culley

• Decision Date: 26 February 1952
• Docket Number: No. 2516,2516
• Citation: 69 Wyo. 285,241 P.2d 87
• Parties: MEYER, v. CULLEY.
• Court: Wyoming Supreme Court

Page 87

241 P.2d 87

69 Wyo. 285

MEYER, v. CULLEY.

No. 2516.

Supreme Court of Wyoming.

Feb. 26, 1952.

Fred W. Layman, Casper, F. Nelson Pabst, Denver, Colo., for plaintiff in error.

Edward E. Murane, R. R. Bostwick, Casper, for defendant in error.

RINER, Justice.

Mrs. Bernice O. Culley, as plaintiff, brought an action in the District Court of Natrona County against W. C. Hopkins, d/b/a Rental Service Company and William E. Meyer as defendants. She sought to recover damages for personal injuries suffered by her in an automobile accident which happened on the afternoon of October 24th 1949 in the vicinity of the town of Moneta, Wyoming. This cause is before us by proceedings in error.

The amended petition of plaintiff is in substance as follows: It states in its paragraph '(1)' that the action is against 'the defendants and each of them' and thereupon alleges that 'W. C. Hopkins is an individual doing business under the trade name of Rental Service Company', and the 'defendant William E. Meyer is an individual and employee of said W. C. Hopkins'; in its paragraph numbered '(2)' that the 'event out of which this cause of action arose took place on Highway U.S. No.20 about three miles west of the town of Moneta in Fremont County, Wyoming, on the afternoon of October 24, 1949,' where a 1949 Plymouth was upset which was owned by the 'defendant Rental Service Company and driven by defendant William E. Meyer.' In its paragraph numbered '(3)' it is stated that when the accident aforesaid happened 'plaintiff was riding in said automobile as a passenger at the request of the defendant William E. Meyer.' The paragraph of plaintiff's pleading numbered '(4)' alleges that when the accident happened 'defendant William E. Meyer was enroute from Casper, Wyoming, to Worland, Wyoming, on business of the defendant Rental Service Company.' The paragraphs of said pleading numbered '(5)' and '(6)' of said amended petition are verbatim as follows:

'(5) That defendant William E. Meyer operated and propelled said vehicle at an excessive rate of speed, to wit 87 miles per hour, and in such manner as to deliberately frighten plaintiff and without regard to the personal safety of the plaintiff, and further without regard to the remonstrances of plaintiff as to the rate of speed and manner of driving of said defendant; that said auto went off the road surface twice before finally going off the road into the barrow pit and rolling over three times in a distance of 270 feet, all of which was while defendant, William E. Meyer, was under the influence of intoxicating liquor.

'(6) That defendant, William E. Meyer, operated said vehicle as aforesaid in a grossly negligent manner, and that said operation was wilful and wanton misconduct, and that such gross negligence and wilful and wanton misconduct was the sole and proximate cause of said accident.'

The remaining three paragraphs of the amended petition undertake to describe plaintiff's injuries and the damage she has suffered in consequence of such accident.

The answer filed by defendant was in these words, omitting the prayer thereof:

'Comes Now the defendants in the above entitled cause and for their answer pleas as follows to wit:

'1. Admit the allegations set out in paragraphs 1, 2 and 4 and deny the remaining allegations set out in said petition.'

The prayer of the defendants was that plaintiff take nothing by 'her suit' and defendants be awarded their costs.

Plaintiff demanded a jury trial and the cause was so tried, another judge sitting in the place of the usual presiding district judge of Natrona County.

At the conclusion of plaintiff's evidence defendants moved for a directed verdict on the grounds that: '* * * the evidence of the plaintiff is insufficient to show negligence--gross negligence, or wilful and wanton misconduct.' Defendants also moved, after both parties had concluded the introduction of evidence, for a directed verdict in their favor 'upon the ground and for the reason that plaintiff has not submitted proof sufficient to entitle her to a judgment.' Both of these motions were denied by the Court.

Thereafter and on July 17, 1950, the jury returned its verdict finding the issues generally for the plaintiff and assessing substantial damages in her favor.

The following day the defendants filed a joint motion for judgment in their favor notwithstanding the verdict of the jury for the alleged reason that said verdict 'is contrary to the evidence and is not supported by the evidence.' This motion was on the next ensuing day denied and the judgment as hereinbelow indicated was rendered and entered, to which defendants were given their exceptions.

July 25, 1950, the defendants filed their joint motion for a new trial of the cause on two grounds, viz: 1. That the 'verdict is not supported by sufficient evidence and is contrary to the evidence' and 2. 'that the damages awarded by the jury is excessive appearing to have been given under the influence of passion or prejudice.'

Disposing of this motion for a new trial the court on January 29, 1951 made the following order:

'* * * The Court being fully advised in the premises Finds as follows:

'1. That the Motion of defendant William E. Meyer should be denied.

'2. That Motion of defendant W. C. Hopkins d/b/a/a Rental Service Company, should be granted.

Wherefore it is Hereby Ordered:

'That the Motion of defendant William E. Meyer be and the same is hereby denied, to which defendant William E. Meyer excepts and his exception is allowed.

'It is hereby further ordered that the motion of defendant W. C. Hopkins, doing business as Rental Service Company, be and the same is hereby granted, to which the plaintiff Bernice Culley excepts and her exception is allowed.'

It is apparent from what has been recited and from the evidence presently to be set forth that section 60-1201, W.C.S.1945 is involved, that section being commonly known as the 'Wyoming Automobile Guest Law' said section reading: '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 mis-conduct 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. [Laws 1931, ch. 2, § 1; R.S.1931, § 72-701].'

Before proceeding with an examination of the evidence, which it is proper for us to consider under the rule repeatedly announced and followed here in appellate practice, it is appropriate to again state the rule as follows: we 'must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it.' Jacoby v. Town of City of Gillette, 62 Wyo. 487, 494, 174 P.2d 505, 506, 177 P.2d 204, 169 A.L.R. 502. See list of cases given where this rule has been referred to and applied though that list is, at the time of writing this opinion, not complete.

With this rule before us we find the evidence which we must consider in favor of the plaintiff to be in substance as follows:

Mrs. Bernice O. Culley: stated that she is the plaintiff in this action; that she is acquainted with William E. Meyer one of the defendants herein. That she first met Meyer in September 1949 when she was employed as hostess at the Trial Bar in Casper, Wyoming. She had been working from about the 15th September until the date of the accident in that employment. That between 15th September and the 24th October 1949 she went out with Mr. Meyer. Once to Denver, once to Worland and once to Newcastle. She did not know at that time that Mr. Meyer was a married man. When she asked him before she went with him if he was married he said 'No, but what difference would it make?' She found out he was married when he brought his wife to the hospital after the accident. She had occasion to go out with Mr. Meyer in Casper where they ate together and she drove with him in his car around town. She had been with him most every place in town, between September 15th and October 24th 1949.

On the evening of October 24th 1949 she saw Mr. Meyer; he asked her to accompany him to Worland, Wyoming, on business; that she had gone there once before; his business was to check trucks working at the plant outside of Worland. It was at 7:30 or 8:00 P.M. when he came for her. When she went to the car with him, he had a bottle which was given to him by one Norman Andrews. Meyer had the bottle in the car when they started on the trip. The car was a 1949 Plymouth sedan. Meyer and Mrs. Culley left shortly after he, Meyer, came to get her, which was around 8:30 and it was dark. She and Meyer went toward Powder River west. As they went along in the car he and she were arguing about another fellow. That Mr. Meyer and she had had an argument once before and had quit going together, and she went out with this other fellow and Mr. Meyer came after her and that is what they were arguing about, i. e. about her having a date with some other man. Mr. Meyer's attitude toward Mrs. Culley after that argument was angry and he took a few drinks and started driving quite fast. She asked him to reduce his speed and he did not do it. He ran off the right side of the road twice; that Mrs. Culley asked him to let her drive and he refused to do that. When Mrs. Culley asked him to reduce his speed he replied that he wondered how fast the car would go. They were east of Powder River when Mrs. Culley asked to get out of the car. Meyer said he would let her out but he did not stop. She asked him again to stop at Powder River when ...