Mitzel v. Hauck

• Decision Date: 13 October 1960
• Docket Number: No. 9840,9840
• Citation: 105 N.W.2d 378,78 S.D. 543
• Parties: Harry MITZEL, by his Guardian ad litem, Barbara Mitzel, Plaintiff and Appellant, v. Ronald HAUCK, by his Guardian ad litem, Anna M. Hauck, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 378

105 N.W.2d 378

78 S.D. 543

Harry MITZEL, by his Guardian ad litem, Barbara Mitzel Plaintiff and Appellant, v. Ronald HAUCK, by his Guardian ad litem, Anna M. Hauck Defendant and Respondent.

No. 9840.

Supreme Court of South Dakota.

Oct. 13, 1960.

H. I. King, George J. Rice, Aberdeen, for plaintiff-appellant.

Agor, Bantz, Siegel & Barnett, Aberdeen, for defendant-respondent.

BIEGELMEIER, Judge.

This is an action for personal injuries suffered by plaintiff riding in a motor vehicle owned and driven by defendant while on a duck hunting trip. At the time of the accident both parties were seventeen years of age; they appeared in the action by guardians ad litem. At the close of plaintiff's case, the trial court directed a verdict for defendant for the reason plaintiff had not shown defendant's conduct was wilful and wanton as required by SDC 44.0362. The five young men in the hunting party discussed the trip Sunday noon and, as plaintiff has urged that he was not a guest within the terms of our guest statute, his testimony is quoted:

'Well, I had offered to take my car. But, he said that he would take his car. So, being as he was going to take his car, I told him I would stay away from--I was going to work for my brother that afternoon. I told him I would stay away from my brother's place. I told him I would accompany him on this trip to look for ducks. I would take my time and go along on this trip and look for ducks on the agreement he would take his car.'

Plaintiff also testified that before the trial he disaffirmed this 'agreement' and contends that it is against the policy of the law to force a legal status, i. e.: that of a guest in a motor vehicle on plaintiff when he has disaffirmed the contract which brought about such a status. SDC 44.0362 provides:

'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; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself.'

It has been considered by this court many times, Wakefield v. Singletary, 76 S.D. 417, 80 N.W.2d 84; Berlin v. Berens, 76 S.D. 429, 80 N.W.2d 79 and cases cited. Apparently realizing the amount of evidence required by this statute, plaintiff attempts to remove himself from its operation. He argues that a minor should, as stated in his brief, 'be allowed to disaffirm and avoid any agreement that he may have made to establish the host-guest relationship' for the reason that minors 'cannot be forced into the host-guest agreement, since they are unable to give their consent due to their legal disability.' SDC 43.0105, which provides for disaffirmance of contracts of minors made under the age of eighteen, is then cited. Neither the statute nor the argument is applicable for in our opinion no contract is involved. It is not every agreement that results in a binding, legally enforceable contract. Neither party may intend the writing to be a contract, Murphy v. Torstrick, Ky., 309 S.W.2d 767; it must contemplate the assumption of legal rights and duties, Trustees of First Presbyterian Church in Newark v. Howard Co. Jewelers, 12 N.J. 410, 97 A.2d 144; the lack of intention to say or do that which manifests a volition to assent may result in a lack of mutual consent, Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 4 N.W.2d 213. This is not to say that there must be a subjective meeting of the minds, Williston on Contracts, Sec. 21, page 42 and Federal Land Bank of Omaha v. Houck, supra; nor that contracts may not be implied in fact or in law, St. John's First Lutheran Church v. Storsteen, 77 S.D. 33, 84 N.W.2d 725. The surrounding circumstances from which a contract stems are to be considered when interpreting its provisions. Unke v. Thorpe, 75 S.D. 65, 59 N.W.2d 419. A family relationship existing between persons may affect their liability on implied contract. See In re Weide's Estate, 73 S.D. 448, 44 N.W.2d 208. Offers made in jest, Keller v. Holdarman, 11 Mich. 248, 83 Am.Dec. 737, or under great mental excitement or anger which are not really intended by the offeror and so known to the offeree have been held not to be the basis of legal liability. The cases are collected and discussed in an older text, Page on Contracts, Second Edition, Secs. 80-82. In Section 21, Williston on Contracts, Third Edition, cited by plaintiff, after recognizing these principles, the author comments 'There seems no reason why merely social engagements should not create a contract if the requisites for the formation of a contract already enumerated exist.' This sentence appeared over forty years ago in the first edition and apparently no courts have found favor with it as the authorities cited in the note do not support this comment. Rather they are opposed to it commencing with Pollock on Contracts, page 4, who mentions the familiar invitation to dinner and suggests there is no contract. In the note the author concludes 'The real difficulty, however, in finding a contract in such cases is that the parties do not manifest an intent to make a bargain, that is, to exchange a promise for an agreed consideration.' To spell out a contract from this hunting trip of these young men, an enjoyable pastime with his friends as plaintiff described it, 'would transcend reality', Scotvold v. Scotvold, 68 S.D. 53, 66, 298 N.W. 266, 272 and transform this sport and similar social affairs to a new legal field. Here it was clearly the friendship and social relation of these parties which resulted in plaintiff going on this hunting trip with defendant and their friends. It was not a commercial arrangement or one that removed him from his status as a guest. See Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510, 512, where, quoting from a prior opinion, this court stated: '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.' It seems also that plaintiff would have the status of guest under his own theory which is--in entering an automobile, without further evidence plai...