Peterson v. Snell, s. 10078

• Court: Supreme Court of South Dakota
• Writing for the Court: HANSON; ROBERTS
• 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.
• Docket Number: Nos. 10078,10082,s. 10078
• Decision Date: 27 March 1964

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.

Page 143

[80 S.D. 497] Whiting, Lynn, Freiberg & Shultz, Rapid City, or plaintiff and appellant.

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

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

[80 S.D. 498] 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 [80 S.D. 499] 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

Page 144

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...