Nehring v. Russell

Citation582 P.2d 67
Decision Date07 July 1978
Docket NumberNo. 4831,4831
PartiesLoran D. NEHRING, Appellant (Plaintiff below), v. Bruce G. RUSSELL, Appellee (Defendant below).
CourtUnited States State Supreme Court of Wyoming

Earl R. Johnson, Jr., Casper, signed the brief and appeared in oral argument on behalf of appellant.

Cameron S. Walker, Casper, signed the brief, and William S. Bon and Cameron S. Walker, Schwartz, Bon & McCrary, Casper, appeared in oral argument on behalf of appellee.

Blair J. Trautwein, Cheyenne, Wyoming Trial Lawyers' Ass'n, signed the brief on behalf of amicus curiae.


RAPER, Justice.

By this appeal, plaintiff-appellant challenges the judgment of the district court in a case tried to the court only, finding against plaintiff on the question of liability in his damage action founded on defendant-appellee's alleged negligent driving. As a basis for reversal, plaintiff raises four claims of error in the following order:

1. The trial court erred in finding the Wyoming guest statute, § 31-5-1116, W.S.1977, applicable to the facts of this case;

2. Substantial evidence does not exist to support the finding of the trial court that defendant-appellee was not guilty of gross negligence;

3. The Wyoming guest statute has been superseded by the enactment of comparative negligence legislation;

4. The Wyoming guest statute is unconstitutional under the constitutions of the United States and the State of Wyoming.

We will hold the guest statute unconstitutional, reverse on that basis only and remand for a determination of damages.

On Friday, May 25, 1975, plaintiff, defendant and a third party left the residence they shared in Glenrock, Wyoming, and headed for Worland, Wyoming, where they intended to build a block pump house for defendant's sister and brother-in-law during the extended Memorial Day weekend. All three men had family connections in the Basin area. The building of the block house was a strictly gratuitous gesture, done without any charge and carried on as more or less a social get-together. While it is not totally clear from the record whether or not all three men were traveling in defendant's pickup truck, it is clear that at least plaintiff was traveling with him, and that factor is all we need be concerned with here.

By Friday night, plaintiff and defendant had reached their destination. Work on the pump house at defendant's sister's home outside of Worland began on Saturday about midday and continued the following day, Sunday, until late evening when the masonry work plaintiff and defendant had set out to do was completed. Both men then cleaned up and drove back to Worland in defendant's truck, intending to visit the local bars. As it was Sunday evening, the bars were closed, but they did discover that a beer party was being held outside of town. By mutual agreement, they decided to drive to this party, arriving sometime between 11:00 p. m. and 12:00 midnight on Sunday.

At approximately 1:30 a. m., (Monday morning) plaintiff returned to defendant's truck wherein he promptly fell asleep. When defendant returned to the truck somewhere between two and three hours later, plaintiff awoke and asked defendant if he wanted plaintiff to drive. Defendant declined the offer, stating that although he was tired, he felt alert, was not sleepy or intoxicated and felt that he could drive back without difficulty to his sister's house where they could spend the night. Plaintiff stayed awake and watched defendant drive without problem for about three or four miles, then laid back down on the seat and went to sleep. Defendant continued driving without difficulty for approximately 20 miles, first over a rugged dirt road, then on paved highway through the town of Worland and onto the paved county road leading to his sister's house. Defendant testified that throughout this period, he had no warning that he was sleepy or drowsy nor that he was likely to become so.

Approximately one and one-half miles from his sister's residence, defendant, without realizing that he may have fallen asleep, suddenly became aware that he had driven his truck into a borrow pit. When an attempt to pull the truck back onto the road threatened to roll it over, he continued through the borrow pit until reaching a drainage ditch, where he abruptly hit a culvert. The truck bounced across the ditch and came to a sudden stop on the other side.

As a result of the occurrence, plaintiff filed a complaint against defendant, seeking damages for injuries sustained, contending negligence in operation of the vehicle. Trial on the issue of liability only was set for February 10, 1977, to be preceded by an informal meeting with the court on that date. In the course of that informal meeting, plaintiff raised the issue of the unconstitutionality of the guest statute, as well as whether or not it had been repealed by the enactment of the comparative negligence statute. Counsel for defendant objected that these issues had not been raised in either a timely or appropriate manner, in response to which the trial court Sua sponte ordered plaintiff to raise those statutory issues through amended pleadings and ordered that trial of liability be continued until March 31. Defendant's objection to this continuance and reopening of the pleadings was denied.

The pleadings were amended and the issues on liability proceeded to trial upon the date to which continued. Following trial, the district judge made the following findings of fact and conclusions of law:


"1. The defendant is not chargeable with gross negligence;

"2. The defendant was guilty of 90% Causal negligence;

"3. The plaintiff was guilty of 10% Causal negligence;

"4. The plaintiff did not assume the risk of the accident and injuries in question;


"1. Wyoming Statute § 31-233 is not unconstitutional under Article 1, § 34 of the Wyoming Constitution;

"2. Wyoming Statute § 31-233 is not unconstitutional and violative of the 14th Amendment of the United States Constitution;

"3. That Wyoming Statute § 31-233 was not repealed by the enactment of Wyoming Statute § 1-7.2, Chapter 28, § 1, Session Laws of 1973;

"4. The Court finds generally in favor of the defendant and against the plaintiff, that judgment should be entered herein in favor of the defendant, and that defendant should recover his costs of suit."

Concurrently, the court entered judgment for the defendant. For the trial court to have denied judgment to the plaintiff, it of necessity must have found that at the time of the accident, plaintiff was a "guest" in defendant's vehicle, as anticipated by the Wyoming guest statute, § 31-5-1116, W.S.1977. 1

When constitutionality becomes a question, this court will only consider such an attack as a final resort. A court does not pass on constitutionality of a statute unless the necessity therefor in a pending case clearly appears. Schoeller v. Board of County Commissioners of Park County, Wyo.1977, 568 P.2d 869; Knudson v. Hilzer, Wyo.1976, 551 P.2d 680; Pan American Petroleum Corporation v. Wyoming Oil and Gas Conservation Commission, Wyo.1968, 446 P.2d 550; West's Wyoming Digest, Constitutional Law, k46(1). It is for that reason, we must patiently dispose of all preliminary questions raised to assure and establish that there is no way to avoid reaching the important constitutional issue.

Before proceeding to the question of constitutionality, we must satisfy ourselves that the trial judge was justified in finding the plaintiff a guest. If not a guest, then we would not have an issue of constitutionality involved. Within the meaning of that statute, whether or not an individual is a guest is primarily a question of motivation, the test being "whether the inducing cause of the transportation was the friendship of the parties or whether the motivating factor of the invitation to ride was the expectation of benefit." Herring v. Coose, Wyo.1967, 434 P.2d 351, 352. Where the inferences to be drawn from the evidence presented are conflicting, the determination is one which should be left to the trier of fact.

"If on the whole evidence the facts, the inferences from them, or the evaluation of them, leave the issue in doubt (under the guiding rules adopted in the jurisdiction), the question whether the occupant is a guest will be left to the jury." Herring v. Coose, 434 P.2d at 352, quoting with approval, 2 Harper and James, Law of Torts, pp. 960-961 (1956).

The trial judge sits as the finder of fact in lieu of a jury in the case now before us. While we might be inclined to agree with plaintiff that his original carriage by defendant to the Worland-Basin area was motivated by reasons of benefit, albeit non-pecuniary, and therefore he was a "passenger" as opposed to a guest, Haley v. Dreesen, Wyo.1975, 532 P.2d 399, Annot. "Nonmonetary Benefits or Contributions by Rider as affecting his Status Under Automobile Guest Statute," 39 A.L.R.3d 1083 (1977), such finding does not necessarily render erroneous the finding by the trial court that plaintiff was a guest. Even though a plaintiff may during the initial course of a trip be considered a passenger as opposed to a guest, when the accident in controversy occurs during a side trip undertaken for the mutual pleasure and enjoyment of the participants, the "passenger" then becomes a "guest" within the meaning of the statute for the duration of that trip. Matlock v. Hooge, Tex.Civ.App.1963, 365 S.W.2d 386, reh. den.; Robe v. Ager, 1964, 80 S.D. 597, 129 N.W.2d 47, reh. den. Assuming, as we must, the truth of the evidence presented in favor of appellee and drawing therefrom every fair and reasonable inference available, Gray v. Fitzhugh, Wyo.1978, 576 P.2d 88; West's Wyoming Digest, Appeal and Error, k931(1) and 989, the record on appeal reflects sufficient substantial evidence to support the trial court's finding in that regard. Rocky Mountain Packing Co. v. Branney, Wyo.1964, 393 P.2d 131.

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