Miller v. Baken Park, Inc.

• Decision Date: 06 March 1970
• Docket Number: Nos. 10569,10586,s. 10569
• Citation: 175 N.W.2d 605,84 S.D. 624
• Parties: Donald MILLER and Elaine Miller, Plaintiffs and Respondents, v. BAKEN PARK, INC., Defendant and Appellant. Donald MILLER and Elaine Miller, Plaintiffs and Appellants, v. BAKEN PARK, INC., Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 605

175 N.W.2d 605

84 S.D. 624

Donald MILLER and Elaine Miller, Plaintiffs and Respondents, v. BAKEN PARK, INC., Defendant and Appellant.

Donald MILLER and Elaine Miller, Plaintiffs and Appellants, v. BAKEN PARK, INC., Defendant and Respondent.

Nos. 10569, 10586.

Supreme Court of South Dakota.

March 6, 1970.

Hanley, Wallahan, Driscoll & Murray, Rapid City, Costello, Porter, Hill, Banks & Nelson, Rapid City, for plaintiffs.

Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant.

BIEGELMEIER, Judge.

No. 10586

A pickup truck, of which Donald Miller was the driver and his wife Elaine a passenger, collided with a tree located in what plaintiffs call a driveway and defendant an auxiliary parking lot. Both received injuries for which this action for damages resulted. Defendant, Baken Park, Inc., owns and controls the premises known as Baken Park Shopping Center, bounded on the south by Canyon Lake Drive, the north by West Main, the east by Mt. View Road and the west by Rapid Creek. A large building centrally located on the premises houses numerous businesses in spaces leased from defendant. To the east of the building is a large customer parking area and to the west an auxiliary parking area. They are hard-surfaced. There are entrances to business places on both lots. Hoke's Drive-In, a lessee of defendant, is located in a separate building on the northwest corner of the Center near West Main and Rapid Creek and some distance from the northwest corner of the large building. While cars parked west of the large building and in the area around the Drive-In, it appears there was space for customers of the Shopping Center's lessees, including the Drive-In, to drive cars to use the lot for parking and also in a north and south direction either from West Main on the north to Canyon Lake Drive on the south or vice versa. The evidence is that they and the general public did so and defendant's officers were aware of it.

Between 9 and 10 p.m. the Millers, residents of Draper, South Dakota, left their cabin near Rapid City to go to Hoke's Drive-In to buy some food. Mr. Miller drove the pickup and parked it while they made their purchase. They had entered the Shopping Center from West Main, the street on the north side of the Center and Drive-In and to which the latter was adjacent, but in leaving it Miller drove south along the large building intending to reach Canyon Lake Drive, the street on the south side of the Center. They had never travelled over this area before but had observed others doing so. It was a misty, gloomy night with wind and gusty rain; the windshield wipers were working and headlights turned on dim. Mrs. Miller testified after driving south some 500 feet or more and at about the same time that Mr. Miller shifted from low to second gear that

'all of a sudden this tree was right in front of us. It was just black and dark, just like the rest. There was no outline at all. * * * Just the moment it was in the range of the headlights we saw it and we were just into it immediately.'

Mr. Miller testified that while his lights had been adjusted by an official light adjuster he was unable to see the tree when it first came into the range of his headlights because of the 'Black asphalt' and 'everything was black, the tree trunk blended with the night' and he was not able to observe the tree until it was almost right in front of him. A lessee familiar with the tree testified a person driving south would have to swerve to avoid it. Another witness also familiar with it testified he drove south this same night and it was hard to see the tree because of reflecting lights on the wet pavement; another witness testified similarly. The testimony as to speed by plaintiffs' pickup varied from 15 to 35 miles per hour. Pictures taken that night and later and plats of the area were introduced in evidence. The tree, with a trunk of about eight inches and branches trimmed to eight or ten feet above the ground, permitted a view of cross traffic ahead driving on Canyon Lake Drive. The exhibits show the distance from the Drive-In to the tree to be 610 feet and the width of the hard-surfaced area to the west of the large building to run from about 180 feet at the north end near the Drive-In angling on the west side down to about 70 feet on the south end at Canyon Lake Drive; this resulted because the bed of Rapid Creek curved to the east. A row of six light poles ran parallel to the south side of the large building, the north four nearest the Drive-In being 70 feet south; the two just beyond the accident scene narrowed this distance to 60 feet. The lights had been turned off as usual at 10 p.m. The evidence showed cars sometimes parked in marked spaces along the building and a bakery truck, always parked along the building at night, occupied part of the space ahead as a person drove south. The tree struck by the pickup was 23 feet east of the row of light poles; it left 27 feet east of the tree open for passage south as a car was parked along the building and 37 feet if it was not. On the angling west side of this parking lot and quite some distance west of the light poles trees line Rapid Creek. The evidence showed fresh bark was stripped from the tree as a result of the impact, but also showed old scars on the tree at heights of car bumpers indicative of past injuries to it. The trial court submitted the controversy to a jury under instructions as to defendant's negligence, contributory negligence and other issues it deemed appropriate. The jury returned a verdict for defendant and plaintiffs appeal.

I.

Without further detailing the evidence we believe it was sufficient for a jury to find defendant was negligent in allowing one tree without reflectors or other warning devices to remain in an area which not only served as a parking lot for customers of its lessees but in the area used by them as a driveway. There was no dispute that plaintiffs were customers of Hoke's Drive-In and therefore its business invitees. Defendant constructed its Shopping Center and maintained control of its parking lots and driveway thereon for the express purpose of serving the customers of its lessees. That was its intent and purpose and the business invitees of its lessees were its business invitees, and owed them the same duty to keep the premises in a reasonably safe condition. Bruno v. Pendleton Realty Co., 240 S.C. 46, 124 S.E.2d 580, 95 A.L.R.2d 1333; Nicholas v. Tri-State Fair & Sales Ass'n, 82 S.D. 450, 148 N.W.2d 183. Plaintiffs were in a place provided for their use and were using it for the purposes for which it had been provided and there was an implied representation it was reasonably safe. Orrison v. City of Rapid City, 76 S.D. 145, 74 N.W.2d 489. Plaintiffs' inability to see the tree here is comparable to plaintiff's inability to see in Orrison.

II.

We first consider the claims of error as to plaintiff Elaine Miller. It is asserted on her behalf that the court erred in refusing to give proposed Instruction 19 to the effect that if the jury found her husband Donald Miller was negligent that such negligence could not be imputed or attributed to his wife Elaine and a related proposed Instruction 35 that the negligence, if any, of Donald Miller was not a defense of defendant Baken Park if it was concurrently causatively negligent.

It is settled law in this state that in the absence of some control or authority over the operation of the car by the wife, the negligence of the husband in driving the car is not imputable to his wife who is riding with him as a passenger and will not prevent her from recovering against a third person for injuries sustained by reason of the concurring negligence of her husband and such third person. Lapp v. J. Lauesen & Co., 67 S.D. 411, 293 N.W. 536. See also Pemberton v. Fritts, 56 S.D. 374, 228 N.W. 409; Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924; and Schoenrock v. City of Sisseton, 78 S.D. 419, 103 N.W.2d 649. North Dakota has adopted a similar view by holding negligence on the part of the driver of a vehicle cannot be imputed to a passenger riding with him. Kelmis v. Cardinal Petroleum Company, 1968, N.D., 156 N.W.2d 710. On this premise, the federal court in Emery v. Northern Pacific Railroad Co., 1969, 8 Cir., 407 F.2d 109, wrote 'plaintiff was clearly entitled to an instruction that the driver Bigelow's negligence was not to be imputed to' the passenger and reversed the judgment entered on a jury verdict for defendant for refusal of the trial court to give it. To the same effect is Van Noy v. Frank, 1935, 10 Cal.App.2d 423, 51 P.2d 1166, where the court calls it a 'fatal omission'. See also California Jury Instructions, BAJI (5th Ed.) No. 3.70; Ross v. Wilcox, 190 Cal.App.2d 213, 11 Cal.Rptr. 588, the cases cited in the Emery opinion and to No. 72.03 Illinois Pattern Jury Instructions.

Defendant contended in the trial court and mentioned it here that the husband's negligence should be imputed to his wife citing Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27, on the theory the husband was the agent of his wife in obtaining food for them. There is no evidence of principal and agent, master and servant, joint enterprise or exercise of control over the driver by the wife. Schoenrock v. City of Sisseton, 78 S.D. 419, 103 N.W.2d 649; Ross v. Wilcox, supra. Without laboring the point we reject that contention here where the husband and wife together were engaged in patronizing a Drive-In. Defendant argues that in several instructions the court limited the claims and duties of the parties separately and thus, in effect, gave the jury the nonimputation guideline. However, the instructions use terms plaintiff and plaintiffs interchangeably and in two or three specifically refer to Donald Miller and Elaine Miller, which the jury could easily misconstrue. We conclude that nothing less than giving the jury in effect proposed Instruction 19 will comply with our cited opinions. They...