Ortman v. Smith

• Decision Date: 20 October 1952
• Docket Number: No. 14539.,14539.
• Parties: ORTMAN v. SMITH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

198 F.2d 123 (1952)

ORTMAN v. SMITH et al.

No. 14539.

United States Court of Appeals Eighth Circuit.

July 17, 1952.

Rehearing Denied August 7, 1952.

Writ of Certiorari Denied October 20, 1952.

T. R. Johnson, Sioux Falls, S. D. (C. H. McCay, Salem, S. D., on the brief), for appellant.

F. M. Smith, Sioux Falls, S. D. (M. T. Woods, H. L. Fuller, J. B. Shultz and T. M. Bailey, Jr., Sioux Falls, S. D., on the brief), for appellees.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

Writ of Certiorari Denied October 20, 1952. See 73 S.Ct. 95.

WOODROUGH, Circuit Judge.

This is an action for damages for the wrongful death of Donna Jean Ortman, a minor, who came to her death through the overturning of an automobile in which she was riding as a gratuitous guest at the invitation of the driver. The defendants were the driver of the car, who was a young girl, and her father, who owned the car and had permitted the girl to drive it. Federal jurisdiction attached on removal of the action because of diversity of citizenship and amount involved. At the conclusion of all the evidence on the jury trial the defendants moved for instructed verdict in their favor for insufficiency of evidence to make out a submissible case in view of the South Dakota Guest Statute. Section 44.0362, South Dakota Code of 1939 was in force at the time of the accident. It reads as follows:

"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."

Defendants' motion was sustained and there was a verdict and judgment thereon for defendants. The plaintiff appeals.

There was little discrepancy in the testimony of the several witnesses, and viewing the evidence in the light most favorable to the plaintiff, it appeared that on July 15, 1950, defendants were visiting in Canistota, South Dakota, where they had formerly lived. On that day, defendant Clifford Smith gave his daughter, defendant Judith Smith, his automobile to drive. The car was a 1948 model four-door DeSoto sedan and was in good mechanical condition.

Judith was 12 years and 8 months of age at that time. Her father testified that Judith had driven the car alone three or four times prior to the day in question, that she had driven a total of about 500 miles in the two years she had been driving (she had started driving at 10 years of age), and that he considered her a good driver. Plaintiff's deceased daughter, Donna Jean Ortman, was 13 years old at the time and was a friend of Judith.

On the day in question Judith came to the Ortman home and requested Donna Jean's parents to permit Donna Jean to accompany Judith in a ride in the Smith automobile. Judith had the car alone at the time, and Donna Jean's parents knew it and also knew Judith's age. At first, plaintiff refused to let his daughter accompany Judith, but he finally relented and gave Donna Jean permission to go with Judith as long as they did not go outside of the town of Canistota. The two girls made a short trip within the town with Donna Jean's infant sister, then they returned to the Ortman home and leaving the sister there, started on another ride, this time with the consent of Donna Jean's mother only and again with the admonition not to go outside of town.

By the time she returned to the Ortman home to leave the baby sister, Judith had picked up four other young girls, all of them friends of both Donna Jean and Judith. The six girls proceeded to a place called "Stanley Corners", about six miles east of the town of Bridgewater. At that place two boys joined the group, and the eight young people, all in the Smith automobile, went on to Bridgewater. Three of them rode in the front seat — Judith driving, one of the boys on her right, and Donna Jean on his right. The other five were in the rear seat.

After reaching Bridgewater the group decided to go on to a farm near that town where another friend lived. In order to reach this farm they proceeded on a gravel road east from Bridgewater. The testimony on the trial was consistent that in driving down this gravel road Judith "did not attempt to show off in her driving by swinging the car from one side of the road to the other, or driving on the wrong side of the road, or anything of that description". Instead, she proceeded on her proper side of the road at a rate of speed of about 45 miles per hour in an ordinary manner. She did not know the road where she had to turn off to reach their destination, however, and she went past that intersection. As she did so, one of the girls in the rear seat called out that Judith had missed the turn. Judith then applied the brakes suddenly, but did not jam them to the floor. The car went out of control and off the left, or north, side of the highway. The testimony was that the gravel at that point was rather heavy and loose, and the gist of it was that when the brakes were applied the car skidded on the gravel and went out of control into the ditch. The car went down the ditch a short way and turned over, and Donna Jean Ortman was killed instantly.

Although there was no claim of impropriety in joining the father as owner of the automobile and the daughter as the driver in the one action as defendants, the claim of actionable negligence against each was distinct and different.

1. As to the defendant Judith Smith, it was evident that the deceased Donna Jean Ortman was her guest within the express terms of the South Dakota Statute. She was being "transported by the * * * operator of a motor vehicle as her guest without compensation for such transportation" and the Statute specifically denies a cause of action for damages against such operator for death "unless such accident shall have been caused by the willful and wanton misconduct of the * * * operator of such motor vehicle". It is also clear that the entire trip was of social character and that the passengers were there "through the promptings of friendship" and there was nothing to suggest that it "was motivated by a mutual expectation of substantial benefit to the owner or operator". See Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, 271. That a minor may be a "guest" within the meaning of the term in so-called "guest statutes" seems clear. Peterson v. Denevan, 8 Cir., 177 F.2d 411; Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206.

As Donna Jean Ortman was a guest in the Smith car at the time of the fatal accident no cause of action for damages for her death accrued against Judith Smith, the operator of the car "unless such accident shall have been caused by her willful and wanton misconduct", and we find no error in the ruling of the trial court that as a matter of law Judith Smith's conduct did not constitute "willful and wanton negligence" within the South Dakota Statute and decisions under it.

In Peterson v. Denevan, supra, at page 413 of 177 F.2d, this court said, "Willful or wanton misconduct under this statute, as interpreted by the Supreme Court of South Dakota means intentionally doing something in the operation of the automobile which should not have been done, or intentionally failing to do something which should have been done under the circumstances, indicating knowledge that an injury to the guest is probable as distinguished from possible." And again in Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, 137, in discussing the same statute here involved, the Supreme Court of South Dakota said: "To bring the conduct of the defendant within the prohibition of this statute the jury must find as a fact that defendant intentionally did something in the operation of a motor vehicle which he should not have done or intentionally failed to...