Peterson v. Denevan

• Decision Date: 03 November 1949
• Docket Number: No. 13963.,13963.
• Citation: 177 F.2d 411
• Parties: PETERSON v. DENEVAN.
• Court: U.S. Court of Appeals — Eighth Circuit

177 F.2d 411 (1949)

PETERSON v. DENEVAN.

No. 13963.

United States Court of Appeals Eighth Circuit.

November 3, 1949.

M. T. Woods, Sioux Falls, S. D., and Harry J. Eggen, DeSmet, S. D. (H. L. Fuller, J. B. Shultz and T. M. Bailey, Jr., Sioux Falls, S. D., were with them on the brief) for appellant.

Gale B. Braithwaite, Sioux Falls, S. D. (Joe W. Cadwell, Sioux Falls, S. D., was with him on the brief) for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This is an appeal from a judgment which dismissed appellant's action on its merits. The parties will be referred to as they appeared in the trial court. The action was to recover damages for the wrongful death of plaintiff's decedent as the result of an automobile accident. Plaintiff is the special administrator of the estate of Marilyn Peterson, deceased, who at the time of her death was fifteen years of age and resided with her parents in South Dakota.

It was alleged in plaintiff's complaint that decedent was riding as a guest in an automobile operated by defendant; that defendant operated the automobile in such a manner that it swerved off the highway and collided with a telephone pole, so injuring plaintiff's decedent that she died as a result thereof; that defendant operated the automobile at such a high and dangerous rate of speed that he was unable to negotiate a curve or turn in the highway with which he was familiar, and that his conduct in driving at such a speed was willful and wanton and without regard for the safety of plaintiff's decedent. It was specifically alleged that the action was brought under and pursuant to the provisions of Chapter 37.22 of the South Dakota Code of 1939 and acts amendatory thereof.

Defendant, a young man eighteen years old, answered by his guardian ad litem, denying any willful or wanton misconduct, and denied that the parents of the decedent were damaged by her death. Other allegations of the answer are not deemed material.

The determining issue actually tried was whether or not plaintiff's proof established willful and wanton misconduct on the part of the defendant. The case was tried to the court without a jury and the court decided this issue in favor of the defendant and entered findings of fact and conclusions of law and judgment in favor of the defendant.

On this appeal the only issue is whether the evidence was such as to compel a finding that defendant was guilty of willful and wanton misconduct in operating the automobile causing the accident, within the purview of the South Dakota Guest Statute, and it is contended that the court's finding of fact to the effect that "said accident was not caused by the willful and wanton misconduct of the defendant Leonard Denevan" was not sustained by the evidence and was clearly erroneous.

The South Dakota Guest Statute, so far as here pertinent, reads as follows: "44.0362. Guest in automobile can recover damages only for willful and wanton misconduct. 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."

The action was tried to the court on its merits, and the court having found the issues in favor of the defendant we must take that view of the evidence which is most favorable to him and we must assume that all conflicts in the evidence were resolved by the court in favor of the prevailing party. The findings are presumptively correct and on appeal "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A.; Federal Savings & Loan Ins. Corp. v. First Natl. Bank, 8 Cir., 164 F.2d 929; Sandlin v. Johnson, 8 Cir., 152 F.2d 8. The question of negligence, of whatever degree or description, is ordinarily one of fact to be determined by the jury in cases tried to a jury, and by the court in cases tried to the court without a jury. It becomes a question of law only when the facts are undisputed, or if in dispute are of such potency that all reasonable men must reach the same conclusion. Merritt v. Interstate Transit Lines, 8 Cir., 171 F.2d 605, and cases there cited.

The action is bottomed on the South Dakota statute and hence plaintiff's right to recovery depends upon the provisions of that statute as construed by the Supreme Court of South Dakota. The statute has been the subject of construction in a number of South Dakota cases. Melby v. Anderson, 64 S.D. 249, 266 N.W. 135; Martins v. Kueter, 65 S.D. 384, 274 N.W. 497; Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153; Elfert v. Witt, S.D., 38 N.W.2d 445. In Melby v. Anderson, supra 64 S.D. 249, 266 N.W. 137, the court among other things, said, "That to create liability under the statute there must be (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) omission to use such care and diligence to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another."

The court after observing that the statute was taken from the law of Michigan and should be construed and interpreted in the light of the Michigan...