Peterson v. Snell

• Decision Date: 27 March 1964
• Docket Number: Nos. 10078,10082,s. 10078
• Citation: 127 N.W.2d 142,80 S.D. 496
• Parties: Lee Etta PETERSON, a minor, by LaBerta Peterson, Guardian Ad Litem, Plaintiff and Appellant, v. Claudia SNELL, a minor, by Lloyd Snell, Guardian Ad Litem, Defendant and Third-Party Plaintiff and Respondent. v. Marion R. STONE, Third-Party Defendant.
• Court: South Dakota Supreme Court

Page 142

127 N.W.2d 142

80 S.D. 496

Lee Etta PETERSON, a minor, by LaBerta Peterson, Guardian Ad

Litem, Plaintiff and Appellant, v.Claudia SNELL, a minor, by Lloyd Snell, Guardian Ad Litem, Defendant and Third-Party Plaintiff and Respondent. v.Marion R. STONE, Third-Party Defendant.

Nos. 10078, 10082.

Supreme Court of South Dakota.

March 27, 1964.

Whiting, Lynn, Freiberg & Shultz, Rapid City, or plaintiff and appellant.

Hanley, Costello & Porter, Rapid City, for defendant and third-partyplaintiff and respondent.

Bangs, McCullen, Butler & Foye, Rapid City, for third-party defendant.

HANSON, Judge.

Lee Etta Peterson was injured while riding in an automobile operated by defendant, Claudia Snell.In this ensuing action the jury returned a verdict in favor of plaintiff in the amount of $24,000.Thereafter defendants' motion for judgment notwithstanding the verdict was granted and plaintiff appeals.Defendants' conditional cross appeal seeking a review of all adverse rulings of the trial court in the event of a reversal has heretofore been dismissed upon motion of plaintiff.

This is another Guest Act case involving the application of SDC 44.0362 which 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 * * *'.

As there is no assertion of willful and wanton misconduct the sole issue is whether or not plaintiff was a guest or passenger in Claudia Snell's automobile at the time of the accident.

In reviewing the evidence plaintiff is entitled to have the same reviewed in the light most favorable to her and to have the benefit of every favorable inference that can fairly be drawn therefrom.Fossum v. Zurn, 78 S.D. 260, 100 N.W.2d 805.Considered accordingly, it appears the plaintiff, Lee Etta Peterson, the defendant, Claudia Snell, and Almyrna Snyder were all teenage members of the First Church of God of Rapid City.All of the girls were members of the Youth Fellowship and choir.Lee Etta was president of the fellowship group and Claudia was secretary.By virtue of their church activities Lee Etta and Claudia had some associations together.The relationship between the two girls was not otherwise close.Lee Etta attended North Junior High School as a freshman while Claudia attended Rapid City High School as a sophomore.Lee Etta and Almyrna, on the other hand, were close friends.They attended the same school, studied together, and visited in each other's home.

The three girls were together Friday afternoon, August 25, 1961 for the purpose of preparing a trio at the request of their pastor for presentation on the following Sunday church program.They first called Mrs. Ardell Hermanson, the church pianist and choir director, to help them practice as a trio.She was busy.The girls then went to the home of Mrs. Nell Snyder for assistance.Claudia had taken music lessons at the Snyder home and the girls had practiced church music there on prior occasions.The girls rode to the Snyder home in an automobile operated by defendant and owned by her father.After practicing at the Snyder home for a short time the girls drove to an apartment house in search of Irene Fankhauser for further assistance in their hymnal practice.Miss Fankhauser was a director of the senior youth group of the Church of God and also assistant pianist.Miss Fankhauser could not be found and about 4:30 p. m. Claudia apparently started on the return trip to deliver Lee Etta and Almyrna to their respective homes.While proceeding east on Interstate 90 Claudia so operated her automobile it went off the highway and after rolling over several times came to rest upright in the median between the two lanes of the divided highway.Lee Etta was seriously injured.

Plaintiff contends she was a passenger and not a guest.Her theory is that at the time of the accident the three girls were on the trip for the specific purpose of preparing a musical number at their pastor's request.Thereby they had a common objective tending toward the promotion of a mutual interest for their common benefit.They were not on a joy ride and as it was not motivated by friendship, hospitality, or companionship Lee Etta occupied the status of a passenger rather than a guest.Plaintiff largely relies on the case of Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169, as authority for her contention that our guest statute does not apply to an occupant of a motor vehicle who is there for the promotion of some mutual interest with the driver which operates for their common benefit, other than social.Incidentally, the Forsling opinion was only concurred in by two members of the court.

In Forsling the rule contended for by plaintiff was included in the following quotation from Section 2292, 4 Blashfield Cyclopedia of Automobile Law and Practice:

'One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage.If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operates for their common benefit or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments.Of course, a passenger for hire is not within their operation, regardless of whether the passenger or some one else pays or promises to pay for the transportation.'

However, the quotation contained the further important qualifying clause:

'The fact that it is contemplated that some indirect benefit will accrue to the operator of the automobile, to which the carriage will have in some degree contributed collaterally or by way of inducement, is not sufficient to make the carriage one for mutual benefit within the rule as stated.'

The nature of the benefit one must confer on a driver in order to become a passenger was further fully considered in Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, in which the court said it must be 'sufficiently real, tangible and substantial to serve as the inducing cause of the transportation, and to operate to completely overshadow any considerations of mere hospitality growing out of friendship or relationship.'This rule has been consistently followed and applied in numerous subsequent cases.SeePeters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410;Antonen v. Swanson, 74 S.D. 1, 48 N.W.2d 161, 28 A.L.R.2d 1;Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510;Tennyson v. Kern, 76 S.D. 136, 74 N.W.2d 316;Kleinhesselink v. Porterfield, 76 S.D. 577, 83 N.W.2d 191;andCluts v. Peterson, S.D., 113 N.W.2d 273.Therefore, the mere fact a rider and driver...