Phelps v. Benson

• Citation: 90 N.W.2d 533,252 Minn. 457
• Decision Date: 29 May 1958
• Docket Number: 37279,Nos. 37278,s. 37278
• Parties: Charles E. PHELPS, as trustee for the heirs and next of kin of Eleanor E. Higgins, and George Higgins, Appellants, v. Melvin BENSON, Respondent.
• Court: Minnesota Supreme Court

Page 533

90 N.W.2d 533

252 Minn. 457

Charles E. PHELPS, as trustee for the heirs and next of kin of Eleanor E. Higgins, and George Higgins, Appellants, v. Melvin BENSON, Respondent.

Nos. 37278, 37279.

Supreme Court of Minnesota.

May 29, 1958.

Syllabus by the Court

1. Where two couples travel together in the automobile owned by one of the parties for the mutual pleasure of all parties, the mere fact of ownership of the automobile does not prevent the owner from being a guest of the operator under the South Dakota 'guest statute' under the facts of this case.

2. Where an essential fact is alleged in a complaint and admitted to be true in a responsive pleading or at the request of the pleader under Rule 36 of Rules of Civil Procedure, that fact no longer is in issue until the pleader takes some action by way of amendment of the pleadings, request for submission of the issue to the jury, or otherwise. Failure to object to a single question inconsistent with the admitted fact is not enough to establish an implied consent to litigate the admitted fact by consent.

Samuel Saliterman and Michael Robins, Minneapolis (Charles Alan Wright, Austin, of counsel), for appellants.

Carlsen & Greiner, Meagher, Geer, Markham & Anderson, Manson Reedal and O. C. Adamson, II, Minneapolis, for respondent.

KNUTSON, Justice.

These cases arose out of an automobile accident which occurred on U. S. Highway No. 14 east of Rapid City, South Dakota, on July 4, 1953.

Mr. and Mrs. Higgins and Mr. and Mrs. Benson had lived in Minneapolis prior to the accident. They had been very close friends for several years. Mr. and Mrs. Higgins and Mrs. Benson were all employed at the Twin City Arsenal. The two couples frequently went on short trips together and they were together nearly every weekend. Shortly before the trip involved here, Mr. and Mrs. Higgins and Mrs. Benson were riding to work together. Mrs. Benson mentioned the fact that she and her husband planned to drive to Quantico, Virginia, on their vacation to pick up their son, who was in the Marines, during his leave. Mr. Higgins then suggested that the two couples join their vacations and also make a joint pleasure trip of it. The following weekend they got together and began to plan the trip. It was decided that they would use Mr. Higgins' car for the reason that it was newer and had better tires. They intended to include in their itinerary Rapid City and the Black Hills in South Dakota; Denver, Colorado, where the Bensons had some relatives they wished to visit; Juarez, Mexico; northern Florida; and then Quantico. They were to share the expenses of the trip, each paying half of the gasoline, oil, meals, and lodging. This was to be handled by keeping an account of all the expenses during each day; each night the one who had paid the expenses that day was to be reimbursed by the other for one-half thereof. They were also to share in the driving of the car. If there were any major repairs to the car, Mr. Higgins apparently was to pay for them, although his testimony in that respect was as follows:

'The conversation was that everything was to be divided, food, lodging, anything that we shared together on the trip, with the exception of major breakdown or something, because I didn't figure we would have any so there was nothing mentioned about that.'

The two couples left Minneapolis around 2 a.m. on July 4. To begin with, Mr. Higgins was driving the automobile. They stopped a few times for coffee, and Mr. Higgins continued to drive until they were a short distance past Phillips Junction in South Dakota on their way to Rapid City. Mr. Higgins then stopped the car on the side of the road and exchanged places with Mr. Benson. The two men sat in the front seat, and the two women sat in the back. After Mr. Benson had driven for some time he drove off the road and the car went down an embankment. Mrs. Higgins died as the result of injuries received, and Mr. Higgins sustained some personal injuries. The car was demolished.

Separate actions against Mr. Benson were commenced by Mr. Higgins to recover for his personal injuries, medical expenses, and damage to his car and by Charles E. Phelps, as trustee for the heirs and next of kin of Mrs. Higgins, to recover for her death. The cases were consolidated for trial. In answer to a special verdict, the jury found that Benson was negligent and that such negligence was the proximate cause of the accident. The jury also found that Mr. and Mrs. Higgins were not guests with compensation. Judgment was ordered for Mr. Higgins for recovery of damages to his automobile and for defendant as to all other claims in both actions. Separate appeals, which have been consolidated here, were taken from an order denying a motion for an order amending the special verdict and granting judgment to plaintiffs or for a new trial.

Inasmuch as the accident occurred in South Dakota, the rights of the parties are governed by the laws of that state. S. Dak. Code of 1939, § 44.0362, as far as material, reads:

'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, * * *.'

The decisive questions presented here center around a determination of whether Mr. and Mrs. Higgins, or either of them, were guests without compensation for such transportation within the meaning of this statutory provision. Some of the questions raised by the appeal have not been answered by the South Dakota court. It is always a disagreeable task to be compelled to determine, as best we can, how a state would construe its statute if the determinative questions were before it; but, in the absence of controlling decisions from that state, we must try to construe the South Dakota statute as we think the courts of that state would do if these questions were before it, using as our guide such decisions of the South Dakota court as we may have available.

The rule generally followed by most states for so-called 'guest statutes' is that such statutes, being in derogation of the common law, must be strictly construed against the host and liberally construed in favor of the guest. ¹ South Dakota does not follow this rule. S. Dak. Code of 1939, § 65.0202(1), reads:

'The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to this Code. This Code establishes the law of this state respecting the subjects to which it relates and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice;'

In Scotvold v. Scotvold, 68 S.D. 53, 58, 298 N.W. 266, 268, the Supreme Court of South Dakota said:

'* * * While the common law is in force in this jurisdiction except where changed by statute or by other expression of the sovereign will, SDC 65.0103, the rule of strict construction of statutes in derogation of common law does not obtain in this state. Our function is to effectuate the legislative purpose through liberal construction. SDC 65.0202.'

In seeking to determine the legislative intent in enacting a statute in derogation of the common law we may consider the common law before the enactment of the statute; the mischief or defect existing in the common law which the statute was intended to correct; and the reason for adoption of the act. The judicial function of interpretation should be to so construe the act as to suppress the mischief and advance the remedy according to the true intent of the legislature as near as that can be determined. ²

What then are the defects in the common law which these so-called guest statutes were intended to remedy? Under the common law, a guest may recover of the operator of an automobile for ordinary negligence. ³

In Crawford v. Foster, 110 Cal.App. 81, 87, 293 P. 841, 843, the California court, in discussing the purpose of enacting its guest statute, said:

'* * * The situation that this section was apparently designed to prevent is well known. As the use of automobiles became almost universal, the proverbial ingratitude of the dog that bites the hand that feeds him, found a counterpart in the many cases that arose, where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly, the Legislature, in adopting this act, reflected a certain natural feeling as to the injustice of such a situation.'

In Naudzius v. Lahr, 253 Mich. 216, 223, 234 N.W. 581, 583, 74 A.L.R. 1189, 1192, the Michigan court, in stating the purpose behind the enactment of its guest statute, goes much further, saying 'It would be threshing old straw to discuss the accepted fact that the motor car has presented social, financial, and governmental problems which justify the Legislature in reasonably classifying it apart from other vehicles in the enactment of laws. L.R.A.1918D, 134, note.

'Generally, gratuitous passengers are relatives or friends. Exceptionally, they are mere acquaintances, invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N.W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its way to this court. * * * In many, probably most, of the cases between relatives or friends the real defendant is an insurance company. Ordinary negligence is not hard to prove if guest and host co-operate to that end. It is conceivable that such actions are not always unattended by collusion, perjury, and consequent fraud upon the court. While we may accept the contention that paid insurers are not objects...